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'S CRANE SERVICE, INC., J! $5.1 ...* CJ a:*., tk~~&.t. 

RICHARD E. LUTTON and CROWN PARTS AND MACHINE, ~~d?l.""~~

%'ffaTE QP NIBHPPM 

Defendants, 

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

Cross-claimants & Appellants, 

v. 

RICKARD A. STRONG and STRONG'S CRANE SERVICE, INC., 

Cross-Defendants & Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

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. 

The plaint iff 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's Crane Service, Inc., Richard E. Lutton, and Crown 

Parts and Machine, Inc., in which they alleged that the defendantst 

negligently injured David and that they were jointly and severally 

liable for the couple's damages. Richard E. Lutton and Crown Parts 

and Machine, Inc. (referred to collectively as Crown Parts), 

cross-claimed against Richard A. Strong and Strong's Crane Service, 

Inc. (referred to collectively as Strong's), for contribution. The 

District Court granted Strong's motion for summary judgment and 

held that Strong's was 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's motion 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, Richard A. Strong was driving 

a crane owned by Strong's in an easterly direction, and while 
turning 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's Crane Service, Inc., Richard E. Lutton, 

and Crown Parts and Machine, Inc. Their complaint alleged that the 

defendants negligently caused David's injuries and were jointly and 

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 

District Court approved the settlement and dismissed with prejudice 

Holmbergs' complaint against all defendants, but allowed Crown 

Parts to proceed with its cross-claim. 

In October 1994, Strong's moved 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 allowed pursuant 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's or Richard Strong. 
DISCUSSION 

Did the District Court err when it granted Strong's motion 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-Fourth Montana 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, 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. . . . . (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 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: 

Regardless of the change in positions here as between the 

joint tortf easors, the principle announced in Deere 

remains the same. The plaintiff's case has ended and the 

nonsettling tortfeasor is not one "against whom 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.2d at 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 "all Defendants . . 

with prejudice." Although the settlement agreement did not include 

Strong's as a releasee, the recitals indicate that Holmbergs agreed 

to "settle and dismiss all claims they have or may 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's and Strong's moved for summary judgment. Recognizing 
that Sprinkle was nearly identical to this case, the District Court 

granted Strong's motion. 

Crown Parts urges that we reverse Sprinkle 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's recent opinion in Linderv. MissoulaCounty (1992), 251 Mont. 

292, 824 P.2d 1004. Crown Parts also relies on cases from other 

jurisdictions and the Uniform Contribution Among Tortfeasor's Act 

(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, in Sprinkle, 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 Missoula 
County. 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's position 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 claim brought by 

Missoula County against the State. In this situation, "an existing 

defendant should not be prevented from obtaining contribution from 

a non-settling party." 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. We 
conclude 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's 1995 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 our decision. 

Dornv. BoardofTrustees (1983), 203 Mont. 136, 144, 661 P.2d 426, 430. 

We affirm the District Court's order and judgment granting 

Strong's motion for summary judgment based on our conclusion that 

Strong's was 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 the present case have so narrowed 

the circumstances under which a defendant can obtain contribution 

that, in the final analysis, we are discouraging settlement. In 

Deere we held that when defendant Deere settled with the plaintiff, 

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 Sprinkle we then held 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 "against whom recovery is allowed." Accordingly, defendant 

1 can no longer pursue his contribution claim against defendant 2. 

Likewise, in the case at hand, defendant Crown Parts had a crossclaim for contribution pending against defendant Strong when Crown 

Parts settled with plaintiff Holmberg. The District Court not only 

approved the settlement but also specifically allowed Crown Parts 

to proceed with its cross-claim for 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 this progression 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 could not 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 reason why 

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 

"against whom recovery is [not] allowed. " 

I am concerned that this line of authority seriously hinders 

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.