IN THE SUPREME COURT OF THE STATE OF MONTANA
1989

JONATHANB. SPRINKLE, Plaintiff,-vsBURLINGTON NORTHERN RAILROAD COMPANY, Defendantand Third Party-Plaintiff,-vsTHE TIRE GUYS,d/b/aTIRE-RAMA, Third-Party Defendant.

ORIGINALPROCEEDING:
COUNSELOF RECORD:
For Plaintiff: Charles C. Deardenargued; Murphy, Robinson,Heckathorn & Phillips,Kalispell,Montana
ForDefendant: Gary M. Zadick argued; IJgrFn,Alexander, Zadick & Slovak, GreatFalls,Montana
ForAmicus Curiae: Poore,Roth & Robinson; Rrendon J. Rohan argued for Glen Rehbein Excavating, Butte,Montana Gough, Shanahan, Johnson & Waterman;Ronald Waterman argued forKraus Construction & Riverside Construction, 

## &Helena,Montana 3- 2 r-4 

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<:, a 1:: 4 :LILIJ ;.- E: L-J Submitted: February 7, 1989 Q till - LAJ ,J

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. +. Decided: March 7, 1989 LL
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*LMr. 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 questionof 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 settleswith 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 # 2underMontana 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, JohnathanB. Sprinkle,was injuredwhile 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 Guyshas 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.nswerto 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-dessuch rightof contribution to BN: Section 27-1-703. Multiple defendants jointly and

P -- 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 tothe injury complained of.

(2) On motion of any party againstwhom 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 ofmay 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 aginstwhom recovery3 allowed. Nothing contained in this section shall malce any party imdispensahlepursuant.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 noncontributinq party. (Emphasisadded.1The foregoing statutewas 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 unexpectedlymoved backward and struck Campbell. At the time of the accident, the Deere tractorwas 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 settledwith 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 thenproceeded forwardwith his negligence action againstWade's Backhoe. Wade's Backhoe filed a third party complaint against Deere seeking indemnity and contribution. SubsequentlyDeere filed a motion for summary judgment relying on the release signedby Campbell. The District Courtdenied Deere's motion for summary judgment. Deere then sought and was qranted a writ of supervisory controlbefore thisCourt. 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 againstwhom 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 aparty againstwhom recovery is not allowed, e.?., 

### a tortfeasorwho haspreviously 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



### InDeere,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 tortfeasorhas 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 "againstwhom recovery is allowed." As we said in Deere, supra, that statutory language excludes from any duty of contribution aparty 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 tortfeasorswhomay 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 settleswith 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 adistrict.court isnot subject to claims for contribution or indemnity from the nonsettling joint tortfeasors againstwhom judgment may be rendered. (Citationsomitted.) 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 actionbrought 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. Theprovisions of UCATA are not helpful however to 

### RN

# . For one thing 

### S 2(a) of UCATA provides that the "relativedegrees of fau1.t cannot be considered.." 

### In other words,under UCATA, the faultof the respective defendants is not compared,but the right of contribution isbased upon per capita rather than pro rata fault. UCATA was firstproposed 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 comparativenegligence. 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), 98N.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), 618P.2d 788 is alsonot 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