# FILED January 29, 1996 Cecil Crowson, Jr. Appellate Court Clerk IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE JOSEPH CARL OWENS, ) FOR PUBLICATION ) Plaintiff/Appellant, ) ) v. ) Davidson Circuit ) TRUCKSTOPS OF AMERICA, ) Hon. Marie tta M. Shi pley, TRUCKSTOPS OF AMERICA, IN C., ) Judge and B.P. AMERICA, INC., ) ) Defendants/ ) Third-Party Plaintiffs/Appellees, ) ) No. 01S01-9408-CV-00077 v. ) ) B. MICHAEL DESIGN, INC . and ) VITRO PRODUCTS, INC., ) ) Third-Party Defendants/ ) Appellees. )



## DISSENTING (IN PA RT) OPINION

DROWOTA, J. Based on the plaintiff's expectati ons at the time he filed this lawsuit in 1988,2

I agree with the majori ty that, in this transi

tion case, it is reasonabl e to permit the plainti ff to recover from the

defendants that he named in his complaint ( "Truckstops") all of his damages that were pr oximately caused by

Truckstops and that were not attributable to the plaintiff's own fault (if any). I also agree with the majority that it is fairin this transition case to permit Truckstops to receiv e contribution from the

parties that were named by Tru ckstops as third-party defendants. However, I believ e that the contribution should be based on the parties' respec tive percentages of fault, and that this method should apply not only to the neglige nce claims set forth in the thirdparty complaint, but to the strict products liabi lity claim as wel l. If liability w ere thus linked to fault on each claim i n the third-party compla int, each defendant(including the third-p ar ty defendants) would be liable only for the percentage of the plaintif f's damag es that wascaused by that defendant's fault, and the doctrine of joint and several liability

would have no application.

First of all, this Court has repeatedly disapprov

ed of the doctrine of

joint and several liability in a g eneral sense. In McIntyre v. Balentine we stated, in dicta, that jointand several liabili ty was rendered

obsolete by the ado ption of compara tive negligence. We confirmed the obsolescence of the doctrine of joint and several liability in Volz v. Ledes , 895 S.W.2d 677 (Te nn. 1995), in which we stated as follows:

We again confirm that the doctri ne of joint and several liability was rendered obsolete by our decision in McIntyre v. Balentine . We b elieve that a system wherein a particular defendant is liable onl y for the percentage of a plaintiff's damages that are caused by that defendant's fault is the system that best achieves our stated goal i n McIntyr e v. Balentine of linking liabilit y and fault. In ke eping with th is goal, we decline t o adopt a rule comparable to the rule under the Uniform Com parative Fault Act pursuant to w hich the liability o

f a g ive n defendant is enhanced beyondthat defendant's percentage of fault if3 ano therc ulpable defendant is insolvent . We do not believe that the goal of l inking liability with fault is furthered by a rule that allo ws a particular

defendant's liability to be determined by the happenstance of the financial wherewithal of other defendants. 895 S.W.2d at 680 (em phasis added).

In addition to our general di sapprov al of jointand severa l liabilit y, we have recentlydecided two cases, Bervoets v. Harde R alls Pontiac-Olds, Inc. , 891 S.W.2d 905 (Tenn. 1994) and Whit ehead v. Toyota Motor Company , 897 S.W.2d 684 (Tenn. 1995), which, when considered in tandem, ap pear to me to require a different result from that reached by the majority. In Bervoets , one of several defendants settled with the plaintiff, who had been injured in an automobile accident. The settlement had the effect of releasing the defendant who w as actually a party

to the settlement, as well
as all other defendants. The issue pr esented waswhether theremedy of contribution survived our McIntyre decision. In holding tha t it did, we stated as foll ows:
Therefore, we today reaff irm McIntyre and hold that actions for contribution that

are to be tried or

retried after May 4, 1992,are to be tried in accord ance with t he princi ples of c omparat ive fault. Because this case unquestionably fits in this category, on retrial the jury wil l determine the percentage of fault attributabl e to each of the defendants, and contribution will be ordered accordingly

.

. . . We are of the opinion that on the retrial of this case the jury should f irst be informe d of the amount of the settlement, and then asked t o determine if that settlement was reasonable accordingto the principles of compara

tive fau lt. The j ury may conside r the fau lt of the plainti ff Bervoetsand the defendants Jackson (Safeco I ns urance Co mpany) and Adanac, Inc. in making this determination. If the jury finds that the settlementwas reasonable, it shall pro ceed to determine the percentage of faul t att ributable to each of the defendants, and contribution will be ordered accordingly . If however, the jury finds that the settlement was, accordi ng to the p rinciples of comparative fault, ' in excess of

what was reasonable,' this same jury will then determine4 the proper amount of

damages; and the jury may consider the fault of plainti ff and the t wo defendants in making this deter mination. Once the juryhas determined the proper amount of damag es, i t shall then determine the fault attributable to each of the de fendants. If the jury finds that the thir d-p arty defendant was at fault, c ontribution shall be ordered from that defendant commensurate with its percentage of

fault

. 891 S.W.2d at 908(em phasis added).

I f and w hen the plaintiff in this case obtains a judgment against Truckstops, this case will be in a pos ture exactly anal ogous to t he situation that existed in Be rvoets -- in other words,the plaintiff would be entitl ed to collect a given dollar amount from one defendant, and would be precluded from directly collecting anything from other would-be defendants. C ontribution could then be determi ned according to the method set forth in Bervoets

.

The majority in this cas e has followed Bervoetswith respect to the negligence claims in the third- p arty complaint. How ever, it refuses to ex

tend the Bervoets rationale to the strict products li ability claim, arg uing that thetheory of strict product s liability law necessarily

requires the retenti on o f joint and several liabi lity, and thus precludesany apportionment on the basis of fault. In my view, this Court's decision in Whitehead , supra , defeats this argument. In that c ase, in w hich t his Court was answering questio ns thathad been certified to us pursuant to Rule 23 of the Rules of the Supreme Court, we stated as follows:

In light of the fore goin g discussion, our answ er to the first question certified to us is that

comparative fault princi ples do apply in products liability actions based on strict liabili ty in tort. The conduct that leads to stric t products liability

involves fau lt, as the word 'fault' is commonly understood . . . . In keeping wi th the principle1 Contraryto the assertion made in footnote 14 of the majority opinion, det ermining the liability

of each defendant according to that defendant's "separate fau lt" would not require th e plainti ff to pr ove "negligence" on the part of each defendant, thus "abolishing strict liability." Rather, the plaintiff woul d, as always, only be required to prove that a de fective or unreasonably dangerous product was pl aced in the stream of commerce, and that he or she w as injured the reby. In fact, we have already recognized this in Whitehead , where we stated: "pl aintiffs will continue to be relieved of proving

that the manufacturer or distri butor was negligent in the production, design, or disseminatio n of the article in question

. Defendant's liability forinjuries caused by a defective product remains strict." Whitehead , 897 S.W.2d 684, 691 (Tenn. 1995). If the plaintiff is able to carr y this burden, the

jury would then apportion "fault" -- as that ter m is defined i n Whitehe ad -- between the variousdefendants, and each defendant's liability would be determined accord ing to that percentage. The majority's insistence that such a system would "abolish strict liability" stems from its overly-expansive definition of that the ory of liab ility. Strict products liability only means that a plaintiff does not have t o prove the traditional elements of negligence on the part of the def endant or defendants in order to recover; it does not necessarily require any par ticula r syst

em of damage allocation , such as joint a nd several liabilit y or comparative fault. Because the majority appears to confuse burde n of proof con siderations with d amage allocation issues, I believe the majority erroneously concludes that the usage of compara tive fault in strict liabil ity actions with multiple defendants "abolishe s" stric t products liability. 5 of linking liabilit

y with fault, a pl aintiff 's ability to recover in a strict products liability case shou ld not be unaffected by the extent to which his injuries result from his own fault." 897 S.W.2d at 693(em phasis added)(citation omitted).

Inasmuch as we have previ ously determined that contr ibution among defendants should be ordered based on the defendants ' respective percentages of fault, and that the conduct that leads to strict products liabi lity is based on fault, 1 the exception made by the majority for s trict products liab il ity claim s represent s, in my view, a departure from our prior dec isions. Because I do not be lieve that such a d eparture promotes the considerations of fair ness that prompted our adoption of compara tive fault, and because there is no reason to confuse the law by resurrecting joint and several liability, I respectfull y dissent.6 _________________________________ FRANK F. DROWOTA III JUSTICE