No. 85-594 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, ex rel., DEERE 

& COMPANY, and R0BER.T L. CAMPBELL, 

Relator, 

THE DISTRICT COURT OF THE FIFTH 

JUDICIAL DISTRICT OF THE STATE OF 

MONTANA, IN AND FOR THE COUNTY OF 

BEAVERHEAD, THE HONORABLE FRANK M. 

DAVIS, presiding District Judge, 

Respondents, 

and 

WADE HANSEN, d/b/a WADE'S BACKHOE 

SERVICE, 

Real Party in Interest. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Relator: 

Moulton, Bellingha-m, Longo & Mather; Brent R. Cromley 

argued for Deere & Co, Billings, Montana 

Schulz, Davis & Warren, Dillon, Montana 

Burgess, Joyce & Whelan; Thomas F. Joyce argued for 

Campbell, Butte, Montana 

For Respondent: 

Poore, Roth & Robinson; Gary L. Walton; Rrendon J. 

Rohan argued for Wade Hanson, Butte, Montana 

Hon. Frank M. Davis, District Judge, ill on, Montana 

For Amicus Curiae: 

Corette, Smith, Pohlman & Allen; Marshall L. Mickelson, Butte, Montana 

Kevin Q. Davis for Asbestos Claims Facility, Portland, 

Oregon 

David R. Black for Burlington Northern, Salt Lake City, 

Utah 

Moore, Rice, OtConnell & Refling; Kathy Cullen, 

Bozeman, Montana 

Filed: 

Submitted: August 7, 1986 

Decided: December 19, 1986 

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* 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

In this original proceeding in this Court, relators 

Deere & Company and Robert L. Campbell make application for a 

writ of supervisory control directed to the District Court, 

Fifth Judicial District, Beaverhead County, to grant Deere's 

motion for summary judgment which the District Court had 

denied. We determine that the writ should. issue. 

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 or indemnity from the nonsettling 

joint tortfeasors. We further hold that the 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. 

In May, 1982, plaintiff Robert L. Ca.mpbel1 was working 

for Beaverhead Irrigation Company installing an irrigation 

system. As Campbell was helping to move a mired dump truck, 

a bulldozer manufactured by Deere & Company backed into him. 

The bulldozer was operated by an employee of Wade's Backhoe, 

Jim Lott. 

In April, 1983, Campbell filed suit for his injuries 

against Wade's Backhoe and Deere & Company. In May, 1983, 

Campbell and Deere reached a settlement agreement whereby 

Deere paid plaintiff $25,000 and Campbell released Deere from 

all claims. Campbell also agreed. in the release to indemnify 

Deere for any amount it might be required to pay to a joint 
tortfeasor thereafter. Campbell reserved in the release his 

claim against Wade's Backhoe. 

The District Court then dismissed Campbell's action 

against Deere with prejudice in May, 1983, pursuant to 

stipulation, leaving Wade's Backhoe as the sole defendant. 

In March, 1984, Wade's Backhoe filed a third party 

complaint against Deere for indemnity and contribution 

because of alleged negligence and strict liability. 

In April, 1984, Deere filed an answer which generally 

denied the third party complaint. In October, 1985, Deere 

filed a motion to amend its answer to include the defense of 

release. At the same time, Deere filed a motion for summary 

judgment relying on the release of Deere by plaintiff 

Campbell. Deere also argued that it had not been properly 

brought into the action under S 27-1-703, MCA. 

In November, 1985, the District Court denied Deere's 

motion to amend its answer to include the affirmative defense 

of release. The District Court also denied Deere's motion 

for summary judgment. 

Thereafter, Deere and Campbell, as relators, filed an 

application in this Court in an original proceeding to 

procure a writ of supervisory control directed to the 

District Court. We ordered a response and set up a briefing 

schedule. We have received such response from Wade's 

Backhoe, and have the benefit of briefs from amici curiae as 

follows: 

The Asbestos Claims Facility in support of relators; a 

brief by the law firm of Moore, Rice, O'Connell and Refling 

in support of relators; a brief of Burlington Northern 

Railroad advocating adoption of a rule under which the 

plaintiff's recovery against the nonsettling tortfeasor is 
reduced by the equitable percentage of negligence of the 

settling tortfeasor or the amount paid, whichever is greater; 

and a brief from the law firm of Corette, Smith, Pohlmann & 

Allen advocating a percentage reduction of the plaintiff's 

claim proportional to the degree of fault of the settling 

joint tortfeasor. 

We identify the issues to be determined in this cause as 

follows: 

1. (a) Whether defendant Wade's Backhoe can bring an 

action for contribution against a joint tortfeasor who 

settled with the plaintiff and obtained a release; 

(b) and if not, what effect should the settlement 

have upon the liability of the nonsettling tortfeasor. 

2. Whether the defendant Wade's Backhoe's claim for 

indemnity can defeat Deere's motion for summary judgment. 

3. Whether a writ of supervisory control should be 

granted. 

4. Whether a denial of indemnity or contribution to 

Wade's Backhoe is a constitutional violation. 

5. Whether Wade's Backhoe followed the correct 

procedures a-gainst Deere & Company in its claims for 

contribution or indemnity. 

We discuss first the effect of a prejudgment settlement 

by one or more joint tortfeasors with a plaintiff on the 

rights to contribution or indemnity of the remaining 

nonsettling joint tortfeasors. 

This issue is the natural outgrowth of our decision in 

Consolidated Freightways Corporation of Delaware v. Osier 

(1979), 185 Mont. 439, 605 P.2d 1076 and the subsequent 

amendment by the Legislature of §S 27-1-702 and -703, MCA. 
Useful to this discussion would be a thumbnail review of 

the growth and development of the law on the subject of 

contribution between joint tortfeasors. 

A starting point is that a non-negligent plaintiff could 

and stil.1 can recover his damages against any of several 

concurrently negligent tortfeasors who proximately caused his 

injuries [we leave aside from this discussion the development 

of legal cause vis-a-vis proximate cause!. The non-negligent 

injured plaintiff could sue one or more or all of the 

concurrent tortfeasors jointly or separately, and could 

recover against one or all. Black v. Martin (1930), 88 Mont. 

No right of contribution to pay the non-negligent 

plaintiff's damages existed among joint tortfeasors against 

whom plaintiff obtained judgment. Panasuk v. Seaton (D.C. 

Mont. 1965), 277 F.Supp. 979; Consolidated Freightways, 

supra, 185 Mont. 442, 605 P.2d 1078. No right of 

contribution existed between tortfeasors against whom 

judgment had been obtained and any unsued tortfeasors. 

Contributory negligence, however, even in the slightest 

degree, barred a plaintiff prior to 1975 from recovery for 

his injuries from any tortfeasor, joint or several. Sztaba 

v. Great Northern Railway Company (1966), 147 Mont. 185, 411 

The harshness of the contributory negligence rule was 

abated when the Montana Legislature adopted the comparative 

negligence statute in 1.975. Section 58-607.1, R.C.M. (1947) 

[later § 27-1-702, MCA]. That statute stated: 

Contributory negligence--when bars recovery. 

Contributory negligence shall not bar recovery in 

an action by any person or his legal representative 

to recover damages for negligence resulting in 

death or injury to person or property, if such 
negligence was not greater than th.e negligence of 

the person against whom recovery is sought, but any 

damages allowed shall be diminished in the 

proportion to the amount of negligence attributable 

to the person recovering. 

In 1977, the Legislature adopted a right of contribution 

between joint tortfeasors. Section 58-607.2, R.C.M. (1947) 

[later § 27-1-703, MCA]. That statute reads: 

Multiple defendants jointly - and severally 

liable--right of contribution. (1) Whenever the 

comparative negligence of the parties in any action 

is an issue and recovery is allowed against more 

than one party, each such party is jointly and 

severally liable for the amount awarded to the 

claimant but has the right of contribution from any 

other party from against whom recovery is allowed. 

Contributions shall be proportional to the 

negligence of the parties against whom recovery is 

allowed. 

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

contribution from a party liable for contribution 

cannot be obtained, each of the other parties 

against whom recovery is allowed is liable to 

contribute a proportional part of the unpaid 

portion of the noncontributing party's share and 

may obtain judgment in a pending or subsequent 

action for contribution from the non-contributing 

party. 

Such was the state of the law in Montana when this Court 

decided Consolidated Freightways, supra, 185 Mont. 439, 605 

Consolidated Freightways came 

certified question from the Federal District Court as to 

whether a tortfeasor who had been sued had a cause of action 

for contribution against a joint tortfeasor who had not been 

joined in the suit by the plaintiff. The facts in 

Consolidated Freightways were that June Osier, a passenger in 

a Plymouth automobile was injured in a collision between the 

Plymouth and a tractor-double-trailer unit operated by 

Consolidated. June Osier sued Consolidated, but did not name 

the driver of her car, her mother, Margaret Collins, as a 

co-defendant. Consolidated sought to bring the driver of the 

Plymouth, Margaret Collins, into the action as third pa.rty 
defendant on a claim of contribution between joint 

tortfeasors. The question we had to resolve was whether 

under the statutes foregoing, Consolidated had any right of 

contribution from Margaret Collins, since there was not 

otherwise a common law right of contribution between joint 

tortfeasors. 

The right of Consolidated to contribution from Margaret 

Collins had to be found, if it existed, in. the provisions of 

27-1-703 above (S 58-607.2, R.C.M. (1947)). We held that 

on its face the sta-tute applied only to cases where 

comparative negligence was an issue and that no right of 

contribution accrued under the statute when a tortfeasor was 

sued by a. non-negligent complainant. We further held that 

even in comparative negligence cases, under 27-1-703 

contribution applied only to those defendants against whom 

judgment had been recovered by the plaintiff. Part of the 

reason for our decision in that regard was the action of the 

Legislature in 1977, when it was considering the bill t.ha.t 

eventually became S 27-1-703, MCA, in refusing at the same 

time to provide for the joinder of any party whose negligence 

might have contributed to the damages claimed by a plaintiff. 

In 1981, the Legislature, obviously grappling with our 

ruling in Consolidated Freightways, moved to amend 5 27-1-703 

(formerly S 58-607.2, R.C.M. (1947)). As amended by the 

Legislature in 1981, 5 27-1-703, MCA, now reads: 

IJIultiple defendants jointly and severally liable- 

-right of contribution. (1 ) 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 claima.nt 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) 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 ma.y have contributed as a 

proximate cause to the injury complained of may be 

joined as an additional party to the action. 

Whenever more than one person is found to have 

contributed as a proximate cause to the injury 

complained of, the trier of fact shall apportion 

the degree of fault among such persons. 

Contribution shall be proportional to the 

negligence of the parties against whom recovery is 

allowed. Nothing contained in this section shall 

make any party indispensable pursuant to Rule 19, 

M.R.Civ.P. 

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

contribution from a party liable for contribution 

cannot be obtained, each of the other parties 

against whom recovery is allowed is liable to 

contribute a proportional part of the unpaid 

portion of the noncontributing party's share and 

may obtain judgment in a pending or subsequent 

action for contribution from the noncontributing 

party. 

The amendment in 1981 of 27-1-703 has three principal 

effects: 

(1) While preserving joint and several liability for 

plaintiff's recovery, it provides a right of contribution 

between joint or concurrent tortfeasors whenever the 

negligence of party is an issue, and not just when 

comparative negligence is an issue; (2) it allows the 

joinder of concurrent or joint tortfeasors who are unsued as 

additional parties to the action; and, (3) it may be said 

additionally that S 27-1-703 allows contribution between 

joint tortfeasors on the basis of comparative fault (a 

different concept from comparative negligence). 

The 1981 amendment of S 27-1-703, MCA, is in derogation 

of the common law as we pronounced it in Consolidated 

Freightways. Though in derogation of the common law, the 

statute is to be libera.11~ construed with a view to effect 

its object and to promote justice. Section 1-2-103, MCA. 

Consolidated Freightways, however, was concerned with an 
unsued defendant. The case at bar presents a different facet 

of the problem. Deere & Company was sued by the plaintiff 

Campbell as a co-defendant with Wade's Backhoe. In the 

course of litigation, Deere & Company has entered into a 

compromise settlement with the plaintiff, leaving the case 

open as to Wade's Backhoe. Deere & Company has been 

dismissed from the action. Wade's Backhoe seeks to bring 

Deere & Company back into the litigation by means of a third 

party complaint for contribution or indemnity. 

Once more a thumbnail review of the judicial history in 

our state of the effect of a release by the plaintiff before 

judgment of one or more joint tortfeasors as to the remaining 

joint tortfeasors is necessary. (The term "joint tortfeasor" 

in this Opinion includes the term "concurrent tortfeasor. ") 

Originally it was assumed that the release of one joint 

tortfeasor by the plaintiff operated as a release of all 

joint tortfeasors: 

All the courts agree that, if consideration paid by 

one tortfea.sor for the release is full compensation 

for the injury, the other tortfeasor is discharged; 

beyond that there is disagreement. (Citing 

authority.) Upon the basis that for the one injury 

the injured party has but one "cause of action" 

arose the ancient rule that, where there is a joint 

cause of action against two or more persons, a 

discharge as against one of them operates as a 

discharge to all: "the rule of law that a release 

which discharges the liability of one joint 

tortfeasor releases the others seems to be based 

upon the nature of their liability, which is one 

and indivisible and is necessarily destroyed by the 

discharge of one." (Citing authority.) To this 

doctrine many courts of this country give assent; 

many adhere to it in the face of a written 

stipulation that the discharge of one tortfeasor 

shall not release the other. The reason given is 

that since there is but a single injury, there can 

be but one satisfaction, that the release implies 

satisfaction; hence, another suit is repugnant 

thereto. 

Black v. Martin, supra, 88 Mont. at 266, 292 P. at 580. 
In Black v. Martin, supra, plaintiff sustained injuries 

through the concurrent negligence of three persons, and 

entered into a written agreement with two of them, whereby in 

consideration of a given amount she discharged them from any 

liability on account of the accident, but reserved her right 

to proceed against the third. This Court held that the 

reservation of right negated the idea that she had received 

more than partial satisfaction and was free to maintain her 

action against the third party for the remaining satisfaction 

to which she deemed herself entitled. Even so, following 

Black v. Martin, this Court continued to hold that the 

release of one joint tortfeasor operated to discharge all 

others unless the release instrument specifically reserved 

the right to proceed against the others. McCloskey v. Porter 

(1973), 161 Mont. 307, 506 P.2d 845; Beedle v. Carolan 

(1944), 115 Mont. 587, 148 P.2d 559; Lisoki v. Anderson 

(1941), 112 Mont. 112, 112 P.2d 1055. However, in Kussler v. 

Burlington Northern, Inc. (1980), 186 Mont. 82, 606 P.2d 520, 

we adopted the rule of the Restatement (Second) of Torts, S 

885 (1985) to the effect that the release of one joint 

tortfeasor is not a release of any other joint tortfeasors 

unless the document is intended to release the other 

tortfeasors, or the payment is full compensation, or the 

release expressly so provides. Kussler held that parole 

evidence as to the intent of the parties executing the 

release was admissible to determine if the plaintiff reserved 

his action against the remaining joint tortfeasors. 

In the case at bar then, following Kussler, there can be 

no doubt that as between the plaintiff Campbell and Deere & 

Company, the latter defendant is completely exonerated from 

any further liability for damages to Campbell. If therefore, 
following Deere's compromise settlement with Campbell, Wade's 

Backhoe can bring Deere & Company back into the action on a 

theory of contribution between joint tortfeasors, the 

finality of Deere's compromise settlement is in serious 

question. 

No clear answer to this issue is to be found from 

examination of the amended statute itself (a not unusual 

circumstance when the legislature changes established 

precepts of common law). Wade's Backhoe contends that it has 

a right to assert contribution against Deere on the basis of 

the language in amended 5 27-1-703 (2), MCA, that "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." Deere, on the other hand, 

contends that contribution from it is not permissible because 

"contribution shall be proportional to the negligence of the 

parties against whom recovery is allowed," and recovery by 

Campbell cannot now he allowed against Deere. Wade's Backhoe 

additionally contends that it now has a statutory right of 

contribution from Deere which is constitutionally guaranteed 

under the right of access to the courts clause of the State 

Constitution (Art. 11, $3 16); and that denying Wade's Backhoe 

a right of contribution here opens the door to collusion 

between a plaintiff and a joint tortfeasor who in equity 

ought to bear more of the plaintiff's damages than the 

compromise calls for. Deere contends that the law favors 

compromise, that the danger of such collusion is remote, and 

that the amendment by the Legislature in 1981 of S 27-1-703, 

MCA, was not intended to preclude prejudgment settlements by 

one or more joint tortfeasors such as the case at bar 

presents. 
We are not helped to determine this issue by looking to 

the decisions of sister states. The results are 

contradictory, depending in some instances upon statutory 

provisions in the respective states which dictate the 

results. In Montana, there is but one statute on the 

subject, the amended S 27-1-703, MCA, and from it we 

determine 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 or 

indemnity from the non-settling joint tortfeasors against 

whom judgment may be rendered. Even though the amended 

section does give a sued joint tortfeasor the right to bring 

in other joint tortfeasors as defendants in order to insure 

contribution, and even though the section states that the 

trier of fact is to determine the degree of negligence among 

each of the joint tortfeasors, the right of contribution 

under the amended statute is "proportional to the negligence 

of the parties against whom recovery j.s allowed." Clearly 

that statutory language exc1ud.e~ a party against whom 

recovery is not allowed, e.g. a tortfeasor who has previously 

settled. 

Consequently, under amended 5 27-1-703, there is no 

right of contribution under Montana law in favor of a joint 

tortfeasor or tortfeasors against whom judgment for the 

plaintiff is entered from other joint tortfeasors who have 

settled with the plaintiff prior to judgment. The judicial 

tenets that the law favors compromise and that a compromising 

party ought to be able to buy his peace with finality 

override the seeming unfairness to non-settling parties who 

did not participate in the compromise nor control its 

direction; this because the non-settling defendant or 
defendants, by virtue of the judgment rendered against them, 

have been found by the trier of fact to be jointly and 

severally liable for the plaintiff's injuries und-er 5 

We, having reached that conclusion, the next question 

presented. is what effect should the settlement by the 

settling tortfeasor have upon the liability the plaintiff 

of the non-settling tortfeasor. 

It has been the law in Montana that such a pre-judgment 

settlement reduces the Liability of the non-settling 

defendants pro tanto only. 

An instrument, qualified as is the one in suit, 

even if it be termed a "release" shows on its face 

that it was not the intention of the parties to 

destroy the injured person's right of action 

against the other tortfeasors, and negatives the 

idea that the injured person has received more than 

part satisfaction. Such an instrument is to be 

considered according to its intention. It releases 

the tortfeasor to whom it is executed as if it were 

in fact an express agreement not to sue, and to 

that extent releases the other tortfeasors pro 

tanto only. 

As each tortfeasor is liable for the entire damage, 

if one sees fit to secure acquittance for himself 

by compromise with the injured person, he does no 

wrong to those who are jointly liable with him. 

How can they complain if he has paid part of the 

damage? They are not prejudiced by the settlement, 

but on the contrary are benefited, for each is 

entitled to have the amount of any judgment 

rendered against him reduced by the amount paid by 

his "cotort-feasor" (Citing authority.) 

The law favors compromises. This is especially 

true in tort actions, not only because they relieve 

the labors of the courts, and avoid expense, but 

also because, where the parties agree between 

themselves upon a settlement of the claim, the 

result reached is frequently a more equitable 

adjustment than is possible to be had in a court of 

law. 

Black v. Martin, supra, 88 Mont. at 267-269, 292 P. at 581. 
More recent support of this rule came from this Court in 

Azure v. City of Billings (19791, 182 Mont. 234, 596 ~.2d 

460. There we said: 

If liability is joint and several the plaintiff is 

entitled to only one recovery. In that event 

deduction of an amount already paid by a joint 

tortfeasor is proper. 

182 Mont. 247-248, 596 P.2d 468. - See, Benner v. B. F. 

Goodrich (1967), 150 Flont. 97, 430 P.2d 648. 

In this case counsel for Wade's Backhoe contends that S 

27-1-703 (2), MCA, now provides a method to determine the 

comparative fault of all joint tortfeasors under which "the 

trier of fact shall apportion the degree of fault among such 

persons." Thus Wade's Backhoe argues that even though Deere 

& Company is no longer liable to the plaintiff by reason of a 

settlement, it may still be liable for contribution to Wade's 

Backhoe, if Deere's proportional fault, as applied to any 

judgment the plaintiff recovers, exceeds the $25,000 paid to 

the plaintiff by Deere. Burlington Northern, as amicus, 

contends that we should adopt a rule whereby Deere's fault 

would be determined by the trier of fact and Deere would be 

liable for its proportion of fault as applied to the eventual 

judgment, or to a dollar credit of S25,000 whichever should 

be greater. 

Campbell and Deere, on the other hand, contend that 

nothing in the legislative history of the amendment of S 

27-1-703(2), MCA, leads to the conclusion that the 

legislature intended to make a settling concurrent tortfeasor 

liable to the other joint tortfeasors up to a proportional 

amount of his fault as applied to the judgment, instead of a 

dollar credit. 
In brief, Wade's Backhoe argues for a percentage 

determination of the eventual judgment as applied to Deere; 

Deere contends for a d-ollar credit on the amount paid in 

settlement to reduce plaintiff's judgment. 

Between them, all counsel have provided us with an 

exhaustive review of the cases examining this problem and 

there is no dearth of authority on the subject. Our sister 

states are not in agreement on the subject, and the reasons 

for their holdings go off in all directions. Mostly their 

decisions are controlled by statutory provisions which direct 

the result for the respective courts. One state, North 

Dakota, has adopted a rule of percentage deduction although 

its statutes provide for a dollar credit. Bartels v. City of 

Williston (N.D. 1979), 276 N.W.2d 113. 

There are two model acts addressing the issue. The 

first is the Uniform Contribution. Among Joint Tortfeasors 

Act, suggested in 1957. The second is the Uniform 

Comparative Fault Act, promulgated in 1977. (Montana has not 

adopted either Act. ) The Uniform Contribution Among Joint 

Tortfeasors Act provides that settlement with one joint 

tortfeasor for a covenant not to sue or execute "reduces the 

claim against the others to the extent of any amounts 

stipulated by release of covenants . . ." In other words the 

reduction of the claim against the remaining tortfeasors is 

done on a pro tanto basis. The Uniform Comparative Fault 

Act, on the other hand, advocates adoption of a proportionate 

or percent credit rule which reduces the non-settling 

defendant's liability by the percentage of causation 

allocated to the settling tortfeasor. 

Among states covered by the Pacific Reporter, New 

Mexico, Nevada, Hawaii, Alaska, Wyoming, Colorado, and 
Arizona have adopted the Uniform Contribution Among Joint 

Tortfeasors Act, the latter three states after the 

promulgation of the Uniform Comparative Fault Act. No state 

has yet statutorily adopted the Uniform Comparative Fault 

Act, but some states by judicial process have adopted the 

percentage deduction concept. 

Apparently because of the conflict between the two model 

acts, the Restatement (Second) of Torts, 886A sets forth 

three possible solutions for the situation where one 

tortfeasor pays a sum to the plaintiff and takes a release 

not in full satisfaction of plaintiff's damages and where the 

plaintiff reserves the right to proceed. against the remaining 

defendants. The first solution would follow the Uniform 

Contribution Among Joint Tortfeasors Act, the third solution 

follows the Uniform Comparative Fault Act and the second 

solution follows what has been the practice in Montana: 

No. 2. The money pa.id and the release given in 

good faith extinguishes both the claim of the 

injured party and a claim for con.tribution by any 

other tortfeasor. However, the money paid is 

credited against any judgment obtained against the 

other tortfeasors. 

The Comment of the Restatement states that the second 

solution is preferred by claimants and insurance companies. 

It is the position advocated in this case by amicus Asbestos 

Claims Facility. 

Important to our discussion here is that the legislature 

in amending 5 27-1-703, MCA, retained specifically the 

concept of joint and several liability for the amount awarded 

to the plaintiff, even though the plaintiff's damages could 

be diminished proportionately to his comparative negligence. 

In retaining joint and several liability, the legislature saw 

the wisdom of protecting even a comparatively negligent 
plaintiff. Without several liability, a concurrent 

tortfeasor whose negligence proximately caused the 

plaintiff's injuries could pay plaintiff only an amount based 

upon the concurrent tortfeasor's proportional fault. This 

would leave the injured plaintiff to bear the portion of the 

judgment that could not be collected from another 

impecunious, immune, or otherwise deficiently-funded 

concurrent tortfeasor. 

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 concurrent tortfeasor 

in the action as an additional defendant or a third party 

defendant to determine its proportional fault for plaintiff's 

injuries, when the non-settling 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." Since no contribution is allowed 

against a settling defendant, it is pointless to keep a 

settling party in the action simply to determine his 

comparative fault when the remaining defendants are severally 

liable to the plaintiff. 

In the light of the provisions of 5 27-1-703, which 

appear to be unique, we determine the better practice is to 

follow what has long been the standard in Montana, that a 

plaintiff's recovery is diminished pro tanto, that is, given 

a 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 the practice which the legislature has not 

been shown to have intended to change. 
Wade's Backhoe's next issue is that its claim for 

indemnity from Deere requires that Deere be kept in the 

action as a third party defendant. 

In Paragraph VI of the third party complaint against 

Deere, Wade's Backhoe alleges: 

The dump truck became mired in boggy ground, and 

Jim Lott walked to where Jim Beitler and plaintiff 

Campbell were working to request their assistance 

in retrieving the dump truck. Beitler told Lott to 

drive Beaverhead's JD450B crawler-tractor to where 

the dump truck was mired, and Beitler and Campbell 

drove to that location separately. Lott backed the 

crawler-tractor near the front of the dump truck, 

placed the shift lever in neutral and closed the 

shift locking gate with the clutch depressed. At 

that time, plaintiff Campbell went between the two 

vehicles with a chain to connect them. To assist 

Campbell, Lott began to climb off the 

crawler-tractor lifting his foot from the clutch as 

he did so, believing the vehicle to be locked in 

neutral. The vehicle was actually in reverse gear, 

and upon action of the delayed hydraulic clutch, it 

lurched violently backwards. Lott immediately 

reseated himself and redepressed the clutch pedal, 

but wasn' t able to do so quickly enough to prevent 

the tractor from striking the plaintiff Campbell. 

The foregoing paragraph is the basis both for Wade's 

Backhoe's claim for contribution, and for indemnity. As to 

indemnity, it is obvious that Wade's Backhoe is relying upon 

the implied concept of indemnity, and not upon contractual 

indemnity. In the light of the allegations, Wade's Backhoe 

had not stated a cause for implied indemnity as a matter of 

law. 

Wade's Backhoe argues that its negligence, if any, is 

at most passive, and not active, that it is not - in pari 

delicto with Deere, and that it has been exposed to liability 

by the negligence of Deere, or on principles of strict 

liability. See, Great Northern Railway Company v. United 

States (D. Mont. 1960), 18 F.Supp. 690, 693. Yet the only 

way that Wade1 s Backhoe can be found liable to Campbell in 

this case is if the negligence of its employee, Lott, 
proximately caused the injuries sustained by the plaintiff 

Campbell. In that situation, Wade's Backhoe is not entitled 

to indemnity. Repeating what we said in Consolidated 

Freightways, supra, 185 Mont. at 448, 605 ~.2d at 1081: 

In American Home Assurance Company v. Cessna 

Aircraft Company (U.S.C.A. 10th 1977), 551 F.2d 

804, 808, the court of appeals said "the Montana 

law is that when each tortfeasor is affirmatively 

negligent neither is entitled to indemnity." We 

see no need to change this settled principle of our 

law. 

The remedies of indemnity and contribution are in theory 

mutually exclusive. Indemnity is an all-or-nothing 

proposition, representing in effect total contribution. 

Counsel for Wade's Backhoe has chosen to characterize the 

allegation in Paragraph VI of the third party complaint as 

constituting a claim for indemnity, but that characterization 

is not determinative. As the Court in Missouri Pacific 

Railroad Company (Missouri 1978), 566 S.W.2d 466, 471, 

observed: 

This is not a sensible way to fix responsibility in 

ind-emnity. It comes about by attempting to find a 

formula by which to excuse one of two joint or 

concurrent tortfeasors completely. When as a 

practical matter they both are to blame, the true 

difference between them being only a matter of 

degree or relativity of fault. With a little 

ingenuity and phrasing, negatives can be made to be 

either "active" or "passive" as suits the writer. 

For example, "driving an automobile with bad 

hrakes" or "running through the stop sign" or 

"using a defective crane" might be said to be 

"active" negligence while "omitting maintenance of 

brake fluid level" or "neglecting to apply the 

brakes" or "failing to inspect the crane in order 

to discover its defectiveness" might be "passive" 

negligence--these are the same acts or omissions 

but the outcome depends not upon the facts, but 

upon how someone chooses to characterize them. 

In this case the facts alleged by Wade's Backhoe do not 

constitute a claim for indemnity. 

It should be clear from our discussion foregoing that we 

do not find a common law right of contribution or of 
indemnity in favor of Wade's Backhoe. Further, because we 

find no common law nor statutory right to contribution or 

indemnity the argument of Wade's Backhoe that it has a 

donstitutional right here is of course foreclosed. 

We hold therefore that Deere & Company is entitled to a 

writ of supervisory control or other appropriate writ 

requiring the respondents to vacate the order denying Deere's 

motion for summary judgment in Cause No. 10061 in the 

District Court, and directing that summary judgment in favor 

of Deere & Company dismissing the third party complaint of 

Wade's Backhoe Service be entered forthwith. 

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 deny the 

application for writ without comment on the grounds that the 

matter could later be looked at by us on appeal, we would be 

foregoing an important opportunity for the instruction of the 

courts and counsel as to our interpretation of amended S 

27-1-703, MCA, under the facts presented. In matters 

involving supervisory control, this Court has followed the 

practice of proceeding 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. District Court (1953), 

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 jurisdiction. State ex rel. 

Coburn v. Bennett fMont. 1982), 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 Court (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 & Company contends that Wade's Backhoe did not in 

this case follow the correct procedure in filing its claim 

for contribution by means of third party complaint. 

Technically, Deere & Company is correct in this 

contention. The provisions of 27-1-703, MCA, allow 

bringing a concurrent tortfeasor into the action by joinder 

"as an additional party to the action." This apparently 

con.templates a motion under Rule 19, M.F.Civ.P. In this 

case, Wade's Backhoe sought to bring Deere t Company into the 

action by means of a third party claim under Rule 14, 

M.R.Civ.P. While the preferred method may well be to proceed. 

under Rule 19, we see no disadvantage to any party if Rule 14 

is followed, as was done in this case. 

Deere & Company is entitled to a writ of supervisory 

control to be issued from this Court in accordance with our 

discussion and directions foregoing. This Opinion shall be 

and serve the office of such a writ, and when a copy of this 

Opinion signed by a majority of the members of this Court 

shall be filed with the Clerk of the District Court, the 

District Court shall forthwith act in accordance therewith. 

We Concur: 

Mr. Justice 1. C. Gulbrandson, concurring and dissenting. 

For the most part, I concur with the majority opinion. 

I respectfully dissent from that part of the majority opinion 

which retains the dollar cred.it rule in Montana. In my view, 

this Court should follow the modern trend and adopt the 

percent credit rule. 

Courts and commentators have established three 

alternative solutions to the issue presented here, i.e., what 

effect will a joint tortfeasor's out of court settlement have 

~, 

upon a judgment entered. against a non-settling joint 

tortfeasor (given that the latter has no right of 

contribution against the former). Those alternatives are: 

(1) the dollar credit rule--the amount of the settlement or 

covenant not to sue is credited against the judgment entered 

against the non-settling defendant, (2) the pro rata credit 

rule--this rule reduces the non-settling defendant's 

liability on the judgment in a proportion equal to the number 

of settling tortfeasors divided by the total number of 

tortfeasors; and (3) the percent credit rule --the 

non-settling defendant's liability on the judgment is reduced 

by the percentage of causation allocated to the settling 

tortfeasor. As the following hypothetical example will show, 

the dollar credit rule can yield unjust and devastating 

results. 

Let us suppose the following. A supplies B with a. 

defective car which B crashes into D who is crossing a 

street. The defective brakes in the car are the main cause 

of the accident and we will assume that A is 90% negligent. 

However, B was slightly careless and he was 10% at fault. D 

settles his suit against A for $10,000. D then wins a 
$100,000 judgment against B in a negligence action. Under 

the majority's dollar credit rule, the $10,000 settlement is 

credited against the verdict and B, who was only 10% at 

fault, has to pay $90,000. Under the percent credit rule, 

the amount of A's negligence, 90%, is credited against the 

judgment and B has to pay $10,000. Results of the majority's 

dollar credit rule include: (1) the plaintiff can insulate. 

a settling tortfeasor from his true degree of liability by 

entering into a low settlement (the remaining defendant will 

have no right of contribution from the settling tortfeasor); 

and (2) the plaintiff can impose a completely 

disproportionate share of liability upon the remaining 

defendant. 

Many courts criticize the dollar credit rule, and 

rightly so. The Texas Supreme Court stated: 

A dollar credit reduces the liability of 

the non-settling defendants, pro tanto, 

by the dollar amount of any settlement. 

The defendant ' s liability thus may 

fluctuate depending on the amount of a 

settlement to which he was not a party. 

This fluctuation cannot be reconciled 

-- with the policy - of apportioning liability 

- in relation to each arty's 

responsibility, theconceptual b&s of 

comparative causation. A dollar credit 

also encourages collusion by shielding 

plaintiffs from the effect of bad 

settlements while denying them the 

benefit of good settlements. (Emphasis 

added. ) 

Duncan v. Cessna Aircraft Co. (Tex. 1984), 665 S.w.2d 414, 

430. The North Dakota Supreme Court criticized the dollar 

credit rule and stated, "[Tlhere may be serious doubt that 

one tort-feasor and the plaintiff could, by or through a 

release, impose greater liability on other joint tort-feasors 

not covered by the release." Bartels v. City of Williston 
(N.D. 1979), 276 N.W.2d 113, 121. Similarly, the Fifth 

Circuit Court of Appeals stated: 

The problems with a [dollar credit rule] 

arise from the fact that it provides no 

rational basis for allocating damages 

among the joint tortfeasors. (Citation 

omitted.) Certainly, nothing prevents a 

collusive, low settlement with a less 

solvent tortfeasor, who might even be 

largely responsible for the harm, in 

exchange for that tortfeasor's assistance 

in prosecuting a claim against the less 

responsible, more solvent joint 

tortfeasor. 

Dobson v. Camden (5th Cir. 1983), 705 F.2d 759, 768, vacated 

on rehearing, 725 F.2d 1003 (5th Cir. 1984). In a decision 

authored by Mr. Justice William J. Brennan, Jr., now of the 

United States Supreme Court, the New Jersey Supreme Court 

also criticized a modified dollar credit rule. 

If the injured party is required to 

credit only the amount received in 

settlement (citation omitted) he may be 

tempted to make collusive settlements, a 

mischief incident to the denial of 

contribution which was one of the 

strongest reasons for the statutory 

change allowing a right of contribution. 

Judson v. Peoples Rank & Trust Company of Westfield (N.J. 

As shown by the majority, a number of states have 

statutory dollar credit rules. This is largely a result of 

those states' adoption of one version or another of the 

Uniform Contribution Among Tortfeasors Act which provid.es for 

the dollar credit rule. 

Section 6 of the 1977 Uniform Comparative Fault Act 

(UCFA) was intended to replace S 4 (the dollar credit rule) 

of the 1955 Uniform Contribution Among Tortfeasors Act in a 

state (such as Montana) following the principle of 

comparative fault and, as stated by the majority, the newer 

Act provides for a percent credit rule rather than a dollar 
credit rule. A comment to the UCFA advises those states 

adopting that Act that, 

A state that has adopted either of the 

two Uniform Contribution Among 

Tortfeasors Acts will of course plan to 

repeal it. This is also true of other 

statutory provisions on contribution for 

tortfeasors. 

Uniform Comparative Fault Act 5 11 comment, 12 U.L.A. 47 

(Supp. 1986). A further comment to the UCFA reveals that, 

" [ t] he 1955 Act [Uniform Contribution Among Tortfeasors Act] 

should be replaced by this Act in any state that adopts the 

comparative fault principle, and would be eventually 

replaced." Uniform Comparative Fault Act, prefatory note, 12 

U.L.A. 38 (Supp. 1986) . An observation of the Texas Supreme 

Court partially explains this comment. "The -- old dollar 

credit [which the Uniform Contribution Among Tortfeasors Act 

provides for] - is considered inappropriate - in jurisdictions 

adopting a system of comparative causation." (Emphasis 

added.) Duncan, 665 S.W.2d at 430, n. 10. Montana is such a 

jurisdiction. 

The Duncan case is the most recent case in the modern 

trend towards adoption of the percent credit rule. The Texas 

Supreme Court found that the percent credit rule was 

consistent with Texas1 comparative causation system. The 

court adopted the percent credit rule and stated: 

The system of comparative causation we 

adopt allows allocation of liability 

between the parties, even when the injury 

itself is indivisible. (Citation 

omitted. ) Because each defendant's share 

can now be determined, it logically 

follows that each may settle jus-t that 

portion -- of the plaintiff's suit. - The 

settlement -- does not affect - the amount of 

harm caused the remaining defendan= 

- and likewise shxld - not affect their 

liability. (Emphasis added.) 
Duncan,665 S.W.2d at 431. 

Bartels, the North Dakota Supreme Court case cited 

above, is a leading case in the modern trend. The 

Bartels court adopted the percent credit rule in North Dakota 

notwithstanding the fact that the state legislature had 

statutorily enacted a dollar credit rule. The court found 

th.at the North Dakota comparative negligence statute (which 

is very similar to Montana's) impliedly repealed the 

statutory dollar credit rule. The Bartels court reasoned 

that when the North Dakota legislature borrowed the 

comparative negligence statute from Wisconsin and Minnesota, 

it also borrowed the Wisconsin and Minnesota courts' 

interpretation of that statute. Bartels followed the 

Wisconsin cases and construed the North Dakota comparative 

negligence statute as requiring the percent credit rule. See 

Pierringer v. Hoger (Wisc. 1963), 124 N.W.2d 106; Bielski v. 

Schulze (Wisc. 1962), 114 N.W.2d 105. 

This Court should adopt the percent credit rule as the 

logical complement to our comparative negligence statute, 

just as Wisconsin, Minnesota and North Dakota. did with 

respect to their comparative negligence statutes. Montana's 

comparative negligence statute indicates a legislative intent 

to apportion fault among the parties. More importa.ntly, 

Montana's contribution statute, § 27-1-703, MCA, ind.icates a 

legislative intent to apportion fault among tortfeasors, 

whether those tortfeasors have settled -- or not. In pertinent 

part, § 27-1-703, MCA, provides, "[wlhenever more than one 

person is found to have contributed as a proximate cause to 

the injury complained of, the trier of fact shall apportion 

- the degree - of fault among such persons." (~mphasis added.) 
Significantly, that statute -- does not limit its application - to 

parties but applies to persons. 

In Doyle v. United States (D.C.S.C. 1977) , 441 F.Supp. 

701, the federal court also found that the percent credit 

rule was particularly consistent and compatible with a 

comparative fault doctrine. The court adopted the percent 

credit rule in a case where the settlement bars contribution 

and in the context of admiralty jurisprudence which has a 

comparative fault doctrine. 

In Dobson v. Camden (5th Cir. 19831, 705 F.2d 759, 

vacated on rehearing, 725 F.2d 1003, (5th Cir. 1984), the 

Fifth Circuit Court of Appeals adopted the percent credit 

rule in the context of a section 1983 action. The court 

found that federal law was deficient on the effect of a 

plaintiff's settlement with one joint tortfeasor as against a 

later judgment against a non-settling ioint tortfeasor. The 

court rejected the local state's dollar credit rule and 

reasoned that the dual policies of section 1983, compensation 

and deterrence, called for a percent credit rule. 

Other courts have also adopted or advocated the percent 

credit rule. See Frey v. Snelgrove (Minn. 1978), 269 N.W.2d 

918; Cartel Capital Corp. v. Fireco of New Jersey (N.J. 

1980), 410 A.2d 674; Gomes v. Brodhurst (3rd Cir. 19673, 394 

F.2d 465; Gustafson v. Benda (Mo. 1983), 661 S.W.2d 11 

(criticizing Missouri's statutory dollar credit rule and 

advocating the legislative adoption of the percent credit 

rule). Commentators have also recommended the percent credit 

rule. See, e.g., Fleming, Report to the Joint Committee - of 

the California Legislature -- on Tort Liability -- on the Problems 

Associated with American Motorcycle Association - v. Superior 

Court, 30 Hastings L.J. 1464, 1498 (1979); Comment, 
Comparative Negligence, Multiple Parties, and Settlements, 65 

Cal.L.Rev. 1264 (1977). 

The majority opinion rests on the conclusion that 

non-settling defendants should. be jointly and severally 

liable for the judgment (less the amount of settlement) even 

where the plaintiff has settled with one joint tortfeasor for 

a sum completely inadequate as to that tortfeasorls 

liability. The better view is that the plaintiff, by 

settling with one tortfeasor, has waived his right to hold 

the remaining tortfeasor jointly and severally liable for the 

remainder of his damages. In Bartels, the North Dakota 

Supreme Court held that the plaintiff Is right joint and 

several liability was for his/her benefit and that the 

plaintiff waived that right as to a non-settling defendant by 

releasing a joint tortfeasor. Montana statutory law provides 

a basis for a similar holding. Section 1-3-204, MCA, states 

" [alnyone may waive the advantage of a law intended solely 

for his benefit. But a law established for a public reason 

cannot be contravened by a private agreement." In the 

context of a single case, the plaintiff's right to joint and 

several liability is solely for his/her benefit and not for a 

public reason. We should follow the Bartels ruling on this 

point. 

The majority states that: 

It would make no sense to keep a settling 

concurrent tortfeasor in the action as an 

additional defendant or a third party 

defendant to determine its proportional 

fault for plaintiff's injuries, when the 

non-settling defendants have no right of 

contribution from the settling 

defendant. . . . Since no contribution 

is allowed against a settling defendant, 

it is pointless to keep a settling party 

in the action simply to determine his 

comparative fault when the remaining 
defendants are severally liable to the 

plaintiff. 

That statement misses the point. As shown in the preceding 

paragraph, the better view is that the remaining defendants 

should not be severally liable to the plaintiffs as 

plaintiffs have waived their right to that benefit. 

Moreover, the percent credit rule does - not require that the 

settling tortfeasor be retained as an additional defendant or 

third party defendant, as the majority implies. 

The issue between the plaintiff and the 

nonsettling defendant, which should be 

framed by an amendment to the pleadings, 

is the percentage of causal negligence, 

if any, of the nonsettling defendant, but 

such percentage of negligence can only be 

determined by a proper allocation of all 

the causal negligence, if any, of all the 

joint tort-feasors and of the plaintiff 

if contributory negligence is involved. 

The determination of this issue between 

the plaintiff and the nonsettling 

defendant does not require the settling 

defendants to remain parties because the 

allocation, if any, of the causal 

negligence to the settling tort-feasors 

is merely a part of the mechanics by 

which the percentage of causal negligence 

of the non settling tort feasor is 

determined. It makes no practical 

difference to the settling tort-feasors 

what percentage of causal negligence is 

allocated to them because they have 

bought their peace in any event. 

Pierringer, 124 N.W.2d at 111-112. The Texas Supreme Court 

stated in Acord v. General Motors Corp. (Tex. 1984), 669 

S.W.2d 111, 117, that, "[tlhe settling party's liability can 

be determined even though the settlor is not joined. 

Requiring joinder of a settling tort-feasor as a party serves 

no useful purpose. " (Citation omitted. ) See also, fteeton, 

Torts, 28 Southwestern L.J. 1, 1-4 (19741, 

Failure to join an alleged settling 

tort f easor neither precludes nor, 

arguably, should it preclude the 

submission of the existence or amount of 

his negligence. The determination of the 
existence or amount of his negligence is 

in no way dependent on his being a party, 

and there is no value in making him a 

formal party to the litigation except for 

procedural and tactical reasons on the 

part,of claimant or defendants. 

The dollar credit rule simply requires the non-settling 

defendant to shoulder the burden of an inadequate, low 

settlement entered into by the plaintiff and the settling 

joint tortfeasor. The better rule is the percent credit rule 

which requires the plaintiff to shoulder the burden of any 

insufficient settlement he has voluntarily entered into.