IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

JONATHAN B. SPRINKLE, 

Plaintiff, 

-vsBURLINGTON NORTHERN RAILROAD 

COMPANY, 

Defendant and Third 

Party-Plaintiff, 

-vsTHE TIRE GUYS, d/b/a TIRE-RAMA, 

Third-Party Defendant. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Plaintiff: 

Charles C. Dearden argued; Murphy, Robinson, Heckathorn 

& Phillips, Kalispell, Montana 

For Defendant: 

Gary M. Zadick argued; IJgrFn, Alexander, Zadick & Slovak, 

Great Falls, Montana 

For Amicus Curiae: 

Poore, Roth & Robinson; Rrendon J. Rohan argued for 

Glen Rehbein Excavating, Butte, Montana 

Gough, Shanahan, Johnson & Waterman; Ronald Waterman 

argued for Kraus Construction & Riverside Construction, & Helena, Montana 

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4 :LILIJ ; .- E: L -J Submitted: February 7, 1989 

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

Court. 

Honorable Jack D. Shanstrom, United States Magistrate, 

United States District Court for the District of Montana has 

certified for our decision under Rule 44, Montana Rules of 

Appellate Procedure, a question of law as follows: 

Plaintiff commences a negligence action against 

defendant # 1. Defendant # I in turn joins 

defendant # 2 seeking contribution. Prior to 

trial, defendant # 1 settles with the plaintiff in 

return for a general release of all claims, 

including claims against defendant number 2. Can 

defendant # 1 continue its action for contribution 

against defendant # 2 under Montana law? 

In connection with the certified question, agreed facts, 

stipulated to by the parties and approved bv the Magistrate 

have been submitted. They are as follows: 

Plaintiff, Johnathan B. Sprinkle, was injured while 

in the course and scope of his employment with the 

defendant, Burlington Northern Railroad Company 

(BN). He commenced this action against BN pursuant 

to the Federal Employers' Liability Act (FELA) 45 

U. S. C. 55 51, et seq., alleging negligence on the 

part of BN. RN subsequently joined Tire GUYS, 

d/b/a Tire-Rama, as a third party defendant 

alleging negligence and seeking contribution 

pursuant to 5 27-1-703, MCA. 

Before trial, BN settled with Sprinkle and received 

a general release of all claims, including claims, 

if any, against Tire Guys. BN is pursuing its 

claim for contribution against Tire Guys. Tire 

Guys has moved for summary judgment contending that 

BN no longer has a cause of action against it. 

We determine in this case that under Montana law as it 

existed and is pertinent to these facts, BN has no right of 

contribution against Tire Guys. The a.nswer to the certified 

question therefor is, "no." 
All parties agree, including amici curiae, that there 

was no right of contribution between joint tortfeasors at 

common law, and that in Montana, a right to contribution, if 

any exists, must be found in statutory law. Consolidated 

Freightways Corporation of Delaware v. Osier (1979) , 185 

Mont. 439, 605 P.2d 1076. We are required then to examine 

the provisions of 5 27-1-703, MCA, as it existed at the time 

here pertinent to determine if statutory Law provj-des such 

right of contribution to BN: 

Section 27-1-703. P Multiple -- defendants jointly and 

severally liable--right of contribution. 

(1) Whenever the neqligence of any party in any 

action is an issue, each party against -- whom 

recovery mav A- 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) 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 he 

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 roportional to the 

negligence -- of the partirs aginst whom recovery3 

allowed. Nothing contained in this section shall 

malce any party imdispensahle 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 noncontributi nq 

party. (Emphasis added. 1 
The foregoing statute was interpreted by us in State ex 

rel. Deere and Company v. District Court (1986)~ - Mont . 

- , 730 P.2d 396. In Deere the plaintiff Robert Campbell 

was injured when a bulldozer manufactured by Deere 

unexpectedly moved backward and struck Campbell. At the time 

of the accident, the Deere tractor was being operated by Jim 

Lott, an employee of Wade's Backhoe Service. Campbell 

initially sued both Deere and Wade's Backhoe. Before 

Campbell's complaint was served upon Wade's Backhoe, Deere 

settled with Campbell for $25,000. Campbell signed a release 

of all claims against Deere and agreed in the release to 

indemnify Deere for any amount it might thereafter be 

required to pay as a joint tortfeasor. Campbell reserved in 

the release his right to pursue an action against. blade's 

Backhoe. Campbell then proceeded forward with his negligence 

action against Wade's Backhoe. 

Wade's Backhoe filed a third party complaint against 

Deere seeking indemnity and contribution. Subsequently Deere 

filed a motion for summary judgment relying on the release 

signed by Campbell. The District Court denied Deere's motion 

for summary judgment. Deere then sought and was qranted a 

writ of supervisory control before this Court. 

In resolving the contribution issue in favor of Deere we 

explained as follows: 

In Montana, there is but one statute on the 

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

we determine that a joint tortfeasor who settles 

with a 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 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 offact is to 

determine the degree of negligence amonu each of 
the joint tortfeasors, the right of contribution 

under the amended statuteis "proportional -- to the 

negligence -- of the parties against whom recovery is 

allowed." Clearly that statutory language excludes 

a party against whom recovery is not allowed, e.?., 

a tortfeasor who has previously settled. 

Consequently, under amended § 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. (Emphasis added. 1 

In Deere, the nonsettling joint tortfeasor, against whom 

the tort action remained, sought contribution from a settling 

tortfeasor before entry of judgment. (Tn using the term 

"joint tortfeasor" we intend to include the term "concurrent 

tortfeasor"). In this case the settling tortfeasor has taken 

a full release from the plaintiff which completely settles 

plaintiff's claim against all tortfeasors, but seeks 

contribution for the settlement before judgment from the 

nonsettling tortfeasor. Regardless of the change in 

positions here as between the joint tortfeasors, 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. 

We have been consistent in following the principle set 

out in Deere. In North -- v. Bunday (19871, - Mont. - , 735 

P.2d 270, we held that our comparative negligence statute 

applies only to "those defendants who remain in the lawsuit, 

and not other possible tortfeasors who may have settled with 

the plaintiff before judgment was entered in the lawsuit." 

735 P.2?. at 275. In Kuhnke v. Fisher (1987), Mont . - I 
740 P.2d 625 relying on Deere, we said that under the 

contribution statute "[tlhe general rule is that a settling 

party does not fall under 'parties against whom recovery is 

allowed,' as once a party settles with a plaintiff, he is no 

longer required to contribute." 710 P.2d at 629. 

~n Sevalstad v. Glaus (19g7), - Mont. - , 737 P.2d 

1147; we said: 

In Deere, we held that "a joint tortfeasor who 

settles with a 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 against whom judgment 

may be rendered. (Citations omitted.) 

Deere is controlling, not withstanding 5 27-1-703, 

MCA, which gives a joint tortfeasor the right to 

bring in other tortfeasors in order to insure 

contribution. 

Accordingly, Glaus has no right of 

contribution against Neifert, since Neifert was 

dismissed with prejudice from the action brought by 

Sevalstad. 

BN contends that the legislature, in adopting § 

27-1-703, MCA, intended to provide a right of contribution 

that would be consonant with the Uniform Contribution Among 

Tortfeasors Act (UCATA) , although Montana has never adopt-ed 

that act. The provisions of UCATA are not helpful however to 

RN . For one thing S 2(a) of UCATA provides that the 

"relative degrees of fau1.t cannot be considered.." In other 

words, under UCATA, the fault of the respective defendants is 

not compared, but the right of contribution is based upon per 

capita rather than pro rata fault. UCATA was first proposed 

before the general adoption by the several states of 

comparative negligence law in tort cases. As a result those 

states that adopted UCATA have had to amend their statutes to 

account for the problems that arise out of comparative 
negligence. The usual result is that the states have 

abandoned UCATA as having no effect when comparative 

negligence is the rule. See, e.g., Bartlett v. New Mexico 

Welding Supply Inc. (N.M.Ct.App.1982), 98 N.M. 152, 646 P.2d 

579; cert.den. 98 N.W. 336, 648 P.2d 794 (1982). For that 

reason, BN's reliance upon Coniaris v. Vail Associates, Inc. 

(Colo. 1978), 586 P.2d 224 is not instructive because it is 

based on Colorado's UCATA. Kennedy v. City of Sawyer (Kan. 

1980), 618 P.2d 788 is also not pertinent, because it relates 

to an action for implied indemnity. Unlike contribution the 

rights to indemnity in Montana are set out in our statutes. 

Section 28-11-301 et seq. MCA. 

We therefore hold that since, under the facts submitted, 

a recoverv by the plaintiff against Tire Guys is not 

possible, a right of contribution for BN under S 27-1-703, 

MCA, does not exist.. We therefore answer the certifie3. 

question "No." /7 

Justice