### NO. 95-093 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 1995



### DAVID C. HOLMBERG and KAROL M. HOLMBERG, Plaintiffs,



### v. RICHARD A. STRONG, STRONG'SCRANE SERVICE, INC., J!

# $5.1 ...* CJ a:*., tk~~&.t. 

### RICHARD E. LUTTON and CROWN PARTS AND MACHINE, 

### ~~d?l.""~~~~~~~~~~~~~~~~' %'ffaTEQPNIBHPPM 

### Defendants,

RICHARD E. LUTTON and CROWN PARTS AND MACHINE, INC., Cross-claimants & 

### Appellants, 

### v. RICKARD A. STRONG and STRONG'SCRANE SERVICE, INC., Cross-Defendants& 

### Respondents.

APPEAL FROM: District Court of the Thirteenth JudicialDistrict, In and for the County of Yellowstone, The Honorable Russell K. Fillner, Judge presiding.

COUNSEL OF RECORD: For Appellants: James L. Jones, Dorsey & 

### Whitney, Billings,Montana For Respondents: Michael W. Tolstedt, Brown, Gerbase, Cebull, Fulton,Harman & 

### Ross, Billings, Montana

Filed: Submitted on Briefs: June 8, 1995 

### Decided: August 3, 1995

### Justice Terry N. 

### Trieweiler delivered the opinion of the Court. Theplaintiff s, 

### David C

### . Holmberg and Karol M. Holmberg, filed

a complaint in the District Court for the Thirteenth Judicial District in Yellowstone County against the defendants, Richard A. Strong, Strong'sCrane Service, Inc.,Richard E. Lutton, and Crown Parts and Machine, Inc.,in which they alleged that the defendantst negligently injured David and that theywere jointly and severally liable for the couple'sdamages. Richard E. Lutton and Crown Parts and Machine, Inc. (referred to collectively as Crown Parts), cross-claimedagainst Richard

### A. Strongand Strong'sCrane Service, Inc. (referredto collectivelyas Strong's), for contribution. The District Court granted Strong'smotion for summary judgment and held that Strong'swas not liable to Crown Parts for contribution. Crown Parts appeals from the District Court's judgment and order. We affirm the District Court. The issue on appeal is: Did the District Court err when it granted Strong'smotion for summary judgment? FACTUAL BACKGROUND On August 13, 1991, 

### David Holmberg was driving his vehicle west on Highway 87 

### when he stopped his vehicle in order to make a left hand turn. Before he turned, David was hit from behind by a truck driven by defendant Richard E. Lutton and owned by defendant Crown Parts. Prior to the collision,RichardA. Strongwas driving

a crane owned by Strong's in an easterly direction, and whileturning right off Highway 87, allegedly caused the boom of the

crane to encroach into the westbound lane, distracting Lutton and contributing to the accident. On February 10, 1994, Holmbergs filed 

### a complaint against Richard A. Strong,Strong'sCrane Service, Inc.,Richard 

### E. Lutton, and Crown Parts and Machine, Inc. Their complaint alleged that the defendants negligentlycausedDavid'sinjuries andwere jointlyand severally liable. On February 28, 1994, Crown Parts filed its answer and a cross-claim against Strong's for contribution. On March 4,1994, Holmbergs and Crown Parts filed a joint motion for the District Court's approval of their settlement agreement, dismissal of Holmbergs' complaint, and permission for Crown Parts to proceed with its cross-claim. On March 17, 1994, Holmbergs signed a settlement agreement with Crown Parts. That same day the DistrictCourt approved the settlement and dismissedwithprejudice Holmbergs' complaint against all defendants, but allowed Crown Parts to proceed with its cross-claim. In October 1994,Strong'smoved for dismissal of Crown Parts' claim by summary judgment. In December 1994, the District Court granted Strong's motion and held that because Holmbergs had released all tort-feasors from liability, Strong's and Richard Strong are not parties against whom recovery is allowedpursuant to 5 27-1-703,MCA, and Sprinklev.BurlingtonNorthern (1989),236 Mont. 383, 769 P.2d 1261. Therefore, the court held that Crown Parts had no right of contribution against Strong'sor Richard Strong.DISCUSSION Did the District Court errwhen it granted Strong'smotion for summary judgment? Our inquiry on review of an order granting summary judgment is identical to that of the district court. Spain-Morrow Ranch,Inc.v. West

(l994),264 Mont. 441, 444, 872 P. 2d 330, 331. Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56 (c) 

### , M.R.Civ.P.;Spain-Morrow, 872 P.2d at 331-32 Crown Parts requests that we reverse the District Court's judgment and, in so doing, expressly overrule Sprinkle. We decline to do so. Montana has altered the common law and recognizes a statutory right to contribution. Section 27-1-703,MCA. In Senate Bill 212, the Fifty-FourthMontana Legislature amended § 27-1-703,MCA, so that it now provides in relevant part: (1) Except as provided in subsections (2) and (3), whenever the negligence of a party in any action is an issue,eachparty againstwhom recoverymay be allowed is jointly and severally liable for the amount that may be awarded to the claimantbut has the right of contribution from any other person whose negligence may have contributedas aproximate cause to the injury complained of.



### . . 

## . . (4) On motion of any party against whom a claim is asserted for negligence resulting in death or injury to person orproperty,any otherperson whose negligencemay have contributed as 

### a proximate cause to the injury complained ofmay be joined as an additionalparty to the action. For purposes of determining the percentage of liability attributable to each party whose action contributed to the injury complained of, the trier of

### [#I 2. Can defendant # 

### 1 continue its action for contribution against defendant # 

### 2 under Montana law? Sprinkle, 769 

### P.2d at 1261. The certified question in Sprinkle 

### is identical to the issue on appeal in this case. Relying on principles set forth in Deere, 

### we held that: Regardlessof the change in positions here asbetween the joint tortfeasors, the principle announced in Deere 

### remains the same. Theplaintiff'scase has ended and the nonsettling tortfeasor is not one "againstwhom recovery is allowed." As we said in Deere, 

### supra, that statutory language excludes from any duty of contribution a party against whom recovery is not allowed. Sprinkle, 

### 769 P.2dat 1263 In this case,Holmbergs filed their complaint and named Crown Parts, as well as Strong's. Crown Parts filed its claim for contribution from Strong's. Crown Parts and the Holmbergs jointly sought the District Court's order which approved their settlement and dismissed Holmbergs' complaint against "allDefendants 

### . 

## . with prejudice." Although the settlement agreement did not include Strong'sas a releasee,the recitals indicate that Holmbergs agreed to "settleand dismiss all claims they have ormay have as against all parties who caused their injuries,"indicating that Holmbergs intended to release Strong's The fact that Holmbergs initially named all defendants in their complaint does not distinguish this case from Sprinkle. 

### As in Sprinkle, 

### Crown Parts obtained a general release of all claims, including claims against Strong's. Crown Parts sought contribution from Strong'sand Strong'smoved for summary judgment. Recognizingthat Sprinkle was nearly identical to this case, the District Court granted Strong'smotion. Crown Partsurges that we reverseSprinkle because it is contrary to the plain statutory language of § 27-1-703,MCA, legislative intent, public policy encouraging settlement, and language from this Court'srecent opinion inLinderv.MissoulaCounty (1992),251 Mont. 292, 824 P.2d 1004. Crown Parts also relies on cases from other jurisdictions and the Uniform Contribution Among Tortfeasor'sAct (UCATA)

### . We disagree with Crown Parts' reliance on cases from other jurisdictions because each case is based on a state statute with statutory language that differs from § 27-1-703,MCA, and because Sprinkle already applied the relevant language of Montana's contribution statute in the present context, based on the plain language of the statute. We also disagree with Crown Parts' reliance on the UCATA because Montana has not adopted the UCATA. As we recognized in Sprinkle, reliance on the UCATA has created difficulty in jurisdictions which have adopted comparative negligence. Therefore, inSprinkle, 769 P.2d at 1263-64,we declined BN's suggestion that we follow the UCATA. Neither is Crown Parts

### ' argument based on Linder persuasive. The plaintiff in Linder contracted tuberculosis and filed a negligence claim against Missoula County,alleging that the County did not adequately monitor a tubercular who moved to MissoulaCounty. Missoula County filed a third-party claim against the State of Montana in which it sought contribution. Linder, 824 P.2d at 1005. The State moved for summary judgment on the basis that the relevant statute of limitations precluded the plaintiff from suing the State. Therefore, the State argued, it was "a party against whom recovery is not allowed,"pursuant to 5 27-1-703,MCA. Linder, 824 P.2d at 1007. We rejected the State'sposition and noted that although both Linder and Deere involved a plaintiff and two potential defendants, the similarity ends [tlhere 

### . . . . In the instant case,the plaintiffs settled with neither party; this is a stark difference from the facts of Deere. Clearly, this difference makes the case at bar distinguishable from Deere and the cases that follow it. (See Sprinkle

### v.

### B.N. Railroad (l989),236 Mont. 383, 769 P.2d 1261)

### . Linder, 824 P.2d at 1007. Therefore,we concluded that the situation in Linder did not fall within the statutory language of § 27-1-703, MCA

### . We then addressed the statute of limitations argument and concluded that the statute of limitations in the underlying claim by the plaintiff did not apply to the contribution claimbrought by Missoula County against the State. In this situation, "anexisting defendant should not be prevented from obtaining contribution from a non-settlingparty." Linder, 824 P.2d at 1007-08. We distinguished Linder from Deere and Sprinkle because the plaintiffs in Linder did not settle with either defendant. Weconclude that the rule set forth in Sprinkle applies to the facts of this case. The relevant statutory language interpreted in Deere, Sprinkle, and Linder remained unchanged by the Legislature's1995 amendment in Senate Bill 212. Therefore,we conclude that Crown Parts'reliance

on public policy favoring settlement is not persuasive, and that because our decisions simply apply the plain statutory language of § 27-1-703, MCA, legislative history is irrelevant to ourdecision. Dornv.BoardofTrustees (1983),203 Mont. 136, 144, 661 P.2d 426, 430. We affirm the District Court's order and judgment granting Strong'smotion for summary judgment based on our conclusion that Strong'swas not a party against whom recovery is allowed pursuant to 5 27-1-703,MCA

We concur:

Justices 10

### Justice W. 

### William Leaphart, specially concurring.



### I specially concur. The philosophy behind contribution among tortfeasors is one of promoting settlement. Our holdings in State ex rel. Deere & 

### Co. v. District Court (1986),224 Mont. 384, 730 P.2d 396 and Sprinkle v. Burlington Northern Railroad (1989),236 Mont

## . 383, 769 P.2d 1261,and now thepresent case have sonarrowed the circumstances under which a defendant can obtain contribution that, in the final analysis, we 

### are discouraging settlement. In Deerewe held that when defendant Deere settledwith theplaintiff, Deere bought his peace and could not then be brought back into the litigation by means of a third party complaint from defendant Wade's Backhoe. In Sprinklewe thenheld that when defendant 1 joins defendant 2 

### seeking contribution and then settles with the plaintiff, obtaining a release of all parties, defendant 2 is no longer a party "againstwhom recovery is allowed." Accordingly,defendant 1 can no longerpursue his contribution claim against defendant 2. 

### Likewise, in the case at hand, defendant Crown Parts had a crossclaim for contributionpending against defendant Strongwhen Crown Parts settled withplaintiff Holmberg. The District Court not only approved the settlement but also specifically allowed Crown Parts to proceed with its cross-claimfor contribution. The court then reversed itself when it granted Strong's motion for summary judgment on the theory that, as a consequence of the settlement, Strong was no longer a party "against whom recovery is allowed"under § 27-1-703,MCA. Presumably Crown Parts will not again make the mistake of unilaterally settling with a plaintiff. The next logical step in thisprogression is to take the

### Deere scenario a step further. Deere settled at a time when there were

no claims for contribution pending against Deere. We held that Deere couldnot be brought back into the litigation after the fact; that is, after the settlement. What about a defendant who is subject to an outstanding claim for contribution at the time of settlement? Under our case law, there appears to be no reasonwhy that defendant cannot circumvent the claim for contribution by unilaterally settling with the plaintiff in an amount less than his/her/its proportionate amount thereby rendering itself a party "againstwhom recovery is [not] allowed." 

### I am concerned that this line of authority seriouslyhinders the public policy considerations favoring contribution among tortfeasors by restricting contribution to situations where multiple defendants refuse to settle and force the plaintiff to go to trial. However, short of usurping the legislature's prerogative 

### and rewriting 

### 5 27-1-703, 

### MCA, 

### I can think of no viable alternatives. Accordingly, 

### I reluctantly and specially concur in the result.