No. 93-631 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

MICHAEL BROCKIE, as Personal 

Representative of the Estate 

of ARIC C. BROCKIE, Deceased, 

Plaintiff and Appellant, 

OM0 CONSTRUCTION, INC., 

Defendant and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Jeffrey Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kurt M. Jackson, Hoyt & Blewett, 

Great Falls, Montana 

For Respondent: 

Michael J. Milodragovich and 

Margaret L. Sanner, Milodragovich, 

Dale & Dye, Missoula, Montana 

Submitted on Briefs: June 23, 1994 

DEC13 1994 Decided: December 13, 1994 
~ustice William E. Hunt, Sr., delivered the opinion of the Court. 

Appellant Michael Brockie, as personal representative of the 

estate of Aric ~rockie, appeals from an order of the First Judicial 

District Court, Lewis and Clark County, denying appellant's request 

for a new trial on the question of damages for the survivorship 

action. 

Following filing of his appeal, appellant filed a notice of 

subsequent authority pursuant to this Court's recent decision in 

Newville & Gannet v. State of Montana, Department of Family 

Services (Mont. 1994), 51 St. Rep. 758, asking us to apply Newville 

retroactively to the wrongful death award. We discuss the 

application of the Newville decision in this opinion. 

Reversed and remanded. 

We state the issues as follows: 

1. Was the jury's special verdict finding zero survivorship 

damages to the estate of Aric Brockie contrary to the evidence? 

2. Did the District Court err by denying appellant's motion 

for a partial new trial on the issue of the survivorship damages 

sustained by Aric Brockiels estate? 

Aric Brockie was killed in an automobile accident on 

November 26, 1989, on Interstate 94, east of Billings. Aric was a 

passenger in a vehicle that skidded on an icy bridge deck and 

collided with a large, portable construction sign owned by 

defendant Omo Construction, Inc. 

Brockie v. Omo Construction, Inc. was first tried in September 

1991, and resulted in a verdict of "no negligence" in favor of 
defendant Omo. Prior to trial, appellant settled with and released 

the driver. This court reversed and remanded on the grounds of 

misconduct by the jury foreman. Brockie v. Omo Construction, Inc. 

(1992), 255 Mont. 495, 844 P.2d 61. 

On remand, the jury returned a special verdict finding Om0 

35 percent negligent for proximately causing Aric's injuries and 

death. The jury found that the non-party driver was 65 percent 

negligent for proximately causing Aric's injuries and death. The 

jury awarded Aric's parents $170,000 in wrongful death damages. 

That amount was adjusted to reflect the 35 percent negligence 

attributable to Omo. The jury awarded Aric's estate zero dollars 

in survivorship damages. 

Appellant filed a motion for a partial new trial pursuant to 

Rule 59, M.R.Civ.P., limited to the issue of survivorship damages 

sustained by Aric's estate. The District Court issued an order 

denying appellant's motion. Appellant appeals the court's order. 

ISSUE 1 

Was the jury's verdict finding zero survivorship damages to 

the estate of Aric Brockie contrary to the evidence? 

Appellant argues that the jury failed in its duty to award 

survivorship damages to the estate, despite the fact that the 

evidence and stipulations established funeral and medical expenses 

and a loss of future earning capacity for the remainder of Aric's 

work life expectancy. 

We have held that it is not the function of this Court to 

agree or disagree with a jury's verdict. Schulke v. Gemar (1994), 
264 Mont. 184, 870 P.2d 1378. Arnold v. Boise Cascade Corporation 

(1993), 259 Mont. 259, 856 P.2d 217. This Court's role is to 

determine whether there was substantial evidence to support the 

verdict. Schulke, 870 P.2d at 1380; Arnold, 856 P.2d at 220. If 

conflicting evidence exists, we do not retry a case because the 

jury chose to believe one party over another. Simchuck v. Angel 

Island Community Association (1992), 253 Mont. 221, 833 P.2d 158. 

However, a ''jury may not disregard uncontradicted, credible, 

non-opinion evidence. Putnam v. Poll ei (1969) , 153 Mont. 406, 

The record shows that prior to the second trial, the court 

granted appellant's motion for partial summary judgment finding 

that Aric survived the accident, entitling his estate to a 

survivorship claim pursuant to 5 27-1-501, MCA, which carries 

forward the claims the injured party had before death. Montana's 

survivorship statute, 5 27-1-501, MCA, provides in pertinent part: 

(1) An action, cause of action, or defense does not 

abate because of the death or disability of a party or 

the transfer of any interest therein, but whenever the 

cause of action or defense arose in favor of such party 

prior to his death or disability or transfer of interest 

therein, it survives and may be maintained by his 

representatives or successors in interest. . . . (2) Actions brought under this section and 27-1-513 

must be combined in one legal action, and any element of 

damages may be recovered only once. 

The statute allows recovery by the decedent's personal 

representative of decedent's lost earnings from the time of injury 

to death; the present value of his reasonable earnings during his 

life expectancy; his medical and funeral expenses; reasonable 
compensation for his pain and suffering; and other special damages. 

Swanson v. Champion International Corp. (1982), 197 Mont. 509, 515, 

646 P.2d 1166, 1169. We have consistently held that the estate's 

right of recovery in a survivorship action is identical to that of 

the decedent's had he lived. "No reason exists why the scope of 

the action should diminish because of his death." Beeler v. Butte 

& London Development Copper Co. (1910), 41 Mont. 465, 478-79, 110 

P. 528, 532; see also Swanson, 646 P.2d at 1169; Hurley v. Star 

Transfer Co. (1962), 141 Mont. 176, 184, 376 P.2d 504, 508; Autio 

v. Miller (1932), 92 Mont. 150, 169, 11 P.2d 1039, 1046. 

The parties stipulatedthat Aric's estate incurred funeral and 

medical expenses totaling $2,601.10. The parties also stipulated 

that at the time of his death, Aric was 19.45 years old and that he 

had a work life expectancy of 40.75 years. Appellant presented 

evidence that in the year before his death, Aric earned $3,239.08 

at an Eastern Montana College computer lab. Appellant's expert 

testified that Aric would have been expected to earn between 

$878,518 and $1,113,929 during his work life, depending on the type 

and amount of his education. 

In Putnam, the personal representative of a college student 

killed in an automobile accident brought a survivorship action 

under 5 93-2824, RCM, the predecessor of 5 27-1-501, MCA. The 

plaintiff in Putnam offered expert testimony as to the decedent's 

potential loss of future earnings; the decedent's life expectancy; 

and testimony concerning the decedent's employment history, 

education, and personal abilities. No evidence was submitted as to 

5 
the amount of money the decedent earned at her employment. The 

jury returned a verdict of $449.95, the amount of the decedent's 

personal property destroyed in the accident. The jury awarded 

nothing for the decedent's loss of future earning capacity. The 

district court set aside the verdict and ordered a new trial 

limited to the issue of damages and held that there was 

insufficient evidence to support a verdict that the decedent had no 

future earning capacity. We affirmed and stated that the verdict 

was impossible, given the uncontradicted evidence which established 

an earning capacity at the time of death. We held that "there was 

no substantial evidence justifying the jury verdict awarding no 

damages for decedent's loss of earning capacity." Putnam, 457 P.2d 

at 413. 

In the present case, the evidence offered by appellant to 

establish survivorship damages was either stipulated to or offered 

without contradiction. The jury did not have the choice whether to 

believe one party's evidence over the other. As a result, the 

jury's verdict in the present case is as impossible as was the 

verdict in Putnam. There is no substantial evidence to justify the 

jury's failure to award survivorship damages. 

In Rudeck v. Wright (l985), 218 Mont. 41, 709 P.2d 621, Mr. 

Rudeck died after a "lap mat" was negligently left in his stomach 

during surgery. His wife filed two medical malpractice claims for 

wrongful death, and in her capacity as personal representative of 

her husband's estate, for his survival claims. The jury returned 

a verdict awarding Mrs. Rudeck $75,000 on her wrongful death claim 
and zero on the estate's survival claim. The district court 

granted Mrs. Rudeckls motion for a new trial. The defendant 

appealed. 

We affirmed and held that the jury's verdict in awarding 

damages on the wrongful death claim, but no damages on the survival 

claim, was "totally inconsistent and contrary to the mandates of 

the law." Rudeck, 709 P.2d at 624. 

If Mr. Rudeck's death was caused by the negligence of 

defendant Wright, then the earlier injury to Mr. Rudeck 

which culminated in his death must have been caused by 

the same negligence. If the same negligence . . . caused 

the personal injury to the living Mr. Rudeck and that 

same negligence caused his later death, the jury would be 

compelled to award damages for Mr. Rudeck's personal 

injury (which were sought in the survival claim on his 

behalf by the personal representative of his estate) as 

well as awarding damages on the wrongful death claim. 

Because the jury did not do so, its verdict is 

inconsistent and is against the law. 

Rudeck, 709 P.2d at 624. 

Aric Brockie's death was caused in part by respondent's 

negligence. The injuries to the living Aric Brockie were caused by 

the same negligent acts of respondent that resulted in Aric 

Brockie's death. The jury, therefore, was compelled to award 

survivorship damages for Aricrs personal injuries. We conclude, as 

we did in Rudeck, that because the jury failed to award damages for 

AricSs personal injuries caused by respondent's negligence, its 

verdict is "totally inconsistent and contrary to the mandates of 

the law." Rudeck, 709 P.2d at 624. 
We hold that the jury's special verdict finding zero 

survivorship damages to the estate of Aric Brockie was contrary to 

the evidence. 

ISSUE 2 

Did the District Court err by denying appellant's motion for 

a partial new trial on the issue of survivorship damages sustained 

by Aric Brockie's estate? 

A new trial may be granted on grounds of insufficient evidence 

to justify the verdict. Section 25-11-102(6), MCA. Our standard 

of review of a ruling on a motion for a new trial is whether the 

district court abused its discretion. Estate of Spicher v. Miller 

(l993), 260 Mont. 504, 506, 861 P.2d 183, 184; Gass v. Hilson 

(1990), 240 Mont. 459, 461, 784 P.2d 931, 933. Under Rule 61, 

M.R.Civ.P., the trial court must determine whether a refusal to 

grant the motion for a new trial would appear inconsistent with 

substantial justice. 

In Issue 1, we held that there was insufficient evidence to 

justify the jury's verdict as to survivorship damages. BY 

answering Issue 1 in the affirmative, we must necessarily answer 

Issue 2 in the affirmative pursuant to 5 25-11-102 (6), MCA, and our 

decisions in Putnam and Rudeck. 

We hold the District Court erred by denying appellant's motion 

for a new trial on the issue of the survivorship damages sustained 

by Aric Brockie's estate. This matter is remanded to the District 

Court for a new trial on the issue of survivorship damages. 
Appellant's notice of subsequent authority pursuant to our 

decision in Newville asks us to apply Newville retroactively to the 

wrongful death award. In that case, we concluded that the 

allocation of percentage of liability to non-parties violates 

substantive due process. We held that the relevant portion of 

27-1-703 (4) , MCA, is unconstitutional. when a statute is 

declared unconstitutional, it is void ab initio. State v. Coleman 

(1979), 185 Mont. 299, 319, 605 P.2d 1000, 1013. 

Respondent argues that Newville should not be applied 

retroactively. Respondent concedes that the general rule regarding 

Itchange of law" is that this Court must apply the law that is in 

effect at the time it renders its decision. Lee v. Flathead County 

(1985), 217 Mont. 370, 704 P.2d 1060. Respondent asserts that the 

changed law should not be applied when it is necessary to prevent 

manifest injustice. See West-Mont Community Care v. Board of 

Health and Educational Sciences (1985), 217 Mont. 178, 703 P.2d 

850. Respondent argues that application of the statute as amended 

would result in manifest injustice because respondent relied on the 

pre-Newville statute and did not name the driver as the third-party 

defendant. Had the trial taken place under the law after Newville, 

respondent maintains it would have protected its rights to 

indemnity and contribution from the driver by naming him as a 

third-party defendant. 

Alternatively, respondent argues that in cases where new law 

has been applied retroactively, this Court has allowed the 

prejudiced party a new trial and the opportunity to amend the 

9 
pleadings. Haines Pipeline v. MPC (1991), 251 Mont. 422, 830 P.2d 

1230. 

Both parties relied on pre-Newville law when presenting their 

cases at trial. The general rule is that a change of law between 

the law applied at trial and the time of appeal requires this Court 

to apply the changed law. Haines, 830 P.2d 1230; Lee, 704 P.2d 

1060; West-Mont, 703 P.2d 850; Wilson v. State Highway Commission 

(1962), 140 Mont. 253, 370 P.2d 486. 

An exception to the general rule, is that the new law will not 

be applied when it is necessary to prevent manifest injustice. 

Haines, 830 P.2d at 1238. This Court has defined manifest 

injustice as an application of a new law that impairs a vested 

right. West-Mont, 703 P.2d at 852. "A judgment is not a vested 

right while it is subject to review or while an appeal is pending.lt 

Haines, 830 P.2d at 1238. 

Because this case is still on appeal, respondent has no vested 

right in the pre-Newville application of § 27-1-703(4), MCA. 

The jury found respondent 35 percent negligent, and the 

non-party driver 65 percent negligent, in causing Aricts injuries 

and death. The jury awarded appellant $170,000 in wrongful death 

damages, and the court adjusted that amount to $59,000 to reflect 

the jury's allocation of negligence. 

On remand, the District Court will reinstate the full amount 

of the wrongful death award pursuant to our decision in Newville. 

That amount will be offset dollar-for-dollar by the pretrial 

settlement with the non-party driver. 
We reverse the jury verdict finding zero survivorship damages 

and remand for a new trial limited to the issue of survivorship 

damages. 

Justice 

We concur: 

Chief Justice 

t 

Just ices 
Justice Fred J. Weber dissents as follows: 

The majority opinion states issue one as follows: 

1. Was the jury's verdict finding zero survivorship 

damages to the estate of Aric Brockie contrary to the 

evidence? 

That statement of the issue addresses only a part of the aspects 

which should be considered on this issue. I suggest that the 

defendant's statement of issue is more complete: 

1. Whether the district court abused its discretion in 

refusing to grant a new trial on the sole issue of 

survivorship damages where the jury awarded $170,000 as 

wrongful death damages. 

In considering this issue, it is necessary to keep in mind the 

questions answered by the jury in the special verdict form prepared 

by the plaintiff: 

QUESTION NO. 6: 

Without making any reductions for percentages of 

negligence, what are Che total damages sustained by 

Michael and Susan Brockie as the heirs of Aric Brockie? 

ANSWER : 

$ 170,000 

If you have assessed damages in answer to question 

number six, you must answer question number seven. If 

you have not assessed damages in answer to question 

number six, you must proceed to answer question number 

seven. 

QUESTION NO. 7: 

Without making any reduction for percentages of 

negligence, what are the total damages sustained by the 

estate of Aric Brockie as the result of his death? 

ANSWER : 

$ - 0 - 

From the wording of the special verdict it appears quite 

possible that survivorship damages could have been included in the 

$170,000 answer to question six. That was the view of the trial 
judge. Following is the analysis of the District Court in which it 

denied plaintiff's request for a new trial on the issue of 

survivorship damages only: 

ORDER ON PLAINTIFF'S REQUEST FOR A NEW TRIAL 

The jury in this matter returned its verdict on 

October 20, 1993. In that verdict, the jury found that 

the total damages suffered by Michael and Susan Brockie 

as the heirs of Aric Brockie were $170,000. The jury 

further found that Defendant Omo was 35 percent 

negligent, which translates into an award of $59,500 for 

the Brockies. The attorneys for the Brockies have moved 

for a new trial on the issue of survivorship damages 

alone. The Brockies argue that there is no dispute but 

that Axic survived the accident and had a survivorship 

action. The Court agrees that this was undisputed. . . 

Defendant contends that the jury could totally 

disregard the expert testimony if they wanted to. This 

is consistent with the supreme court holding in Putnam v. 

Pollei, 153 Mont. 406, 457 P.2d 776 (1969). . . . Neither in that special verdict form nor in the closinq 

arsuments did Plaintiff's attornevs offer any quidance to 

the iurv as to how the damaqes were to be split up 

between Aric's parents as the heirs in a wronsful death 

action and damaqes to be awarded to the personal 

representative of the estate. It would not have been 

difficult at all for such a jury questionnaire to have 

been drafted and offered, but none was. 

The Brockies insist that they have not had a fair 

trial. This Court feels that they have received a fair 

trial. All of the evidence that they wanted introduced 

was introduced. The special verdict form that they 

offered was used by the Court. The $170,000 that the 

iurv did award could well have been to compensate for 

Aric's medical and funeral expenses, alona with his 

earninq capacity and damaqes to his parents. This we 

will never know. Primarily we will not know this because 

of the way the verdict form was crafted. For Plaintiff s 

counsel to now complain about the verdict form that was 

crafted bv Plaintiff does not find a receptive audience 

with this Court. Further, this is not a case as was 

Putnam where damages of $445 were awarded, nor was it a 

case such as Flaherty v. Butte Electric Railway, 42 Mont 

89, 111 P.2d 348 (1910) where $100 damages were awarded 

for the loss of a three year old child. 

To allow a new trial on the survivorship action 

alone would allow Plaintiff to keep the money they have 

already won and roll the dice again. Thev have won a 
substantial award from the jury, and the fact that it is 

not broken out between the survivorship and wronsful 

death action is not the fault of Defendant nor this 

Court. 

Therefore, Plaintiff Is request for a new trial on 

the question of damages for the survivorship action is 

hereby denied. (Emphasis supplied.) 

In addressing this issue, the majority opinion emphasizes the 

uncontradicted evidence which establishes survivorship damages 

which should have been awarded, including funeral and medical 

expenses in the amount of $2,601.10 and earnings testified to by 

the plaintiff s expert in an amount of $878,518 to $l,ll3,929. The 

majority opinion then concludes there is no substantial evidence to 

justify the juryls failure to award such survivorship damages. 

The foregoing analysis does not addxess the specific matters 

considered by the District Court in its denial of new trial. An 

example is the reference of the majority opinion to Putnam v. 

Pollei (1969), 153Mont. 406, 457 P.2d 776, in which the statement 

is made that the jury's verdict in the present case is as 

impossible as was the verdict in Putnam, This fails to address the 

analysis correctly made by the District Court where it pointed out 

that in Putnam, the damages awarded were only $449.25, whereas in 

the present case, damages were awarded in the amount of $1701000 

and that amount could have included survivorship damages. 

In a similar manner, the majority opinion relies on Rudeck v. 

Wright (l985), 218 Mont. 41, 709 P.2d 621. The majority opinion 

points out that in Rudeck, a new trial was awarded in a case in 

which the jury returned a verdict awarding Mrs. Rudeck $75,000 on 

a wrongful death claim and $0 on the estate's survival claim. The 
key difference between Rudeck and the present case is that in 

Rudeck the Court allowed a new trial on issues so that Mrs. 

Rudeck was not allowed to retain the $75,000 awarded her on the 

wrongful death damages and try again the issue of the estate1 s 

survivorship damages. 

As above quoted, the District Court concluded plaintiff had a 

fair trial. It emphasized that the special verdict form had been 

prepared by the plaintiff and that the "$l7O,OOO that the jury did 

award could well have been to compensate for Aricls medical and 

funeral expenses, along with his earning capacity and damages to 

his parents. This we will never know." The District Court further 

emphasized that neither in the special verdict form nor in the 

closing arguments did plaintiff's attorneys offer any guidance to 

the jury as to how damages were to be divided between Aricls 

parents as his heirs in a wrongful death action and damages to be 

awarded to the personal representative of the estate. 

I conclude there is no proper basis for overturning the denial 

of a new trial by the District Court, and I dissent on Issue I. 

On Issue I, I do point out that the argument which appeared 

strongest to me in behalf of the plaintiff was the possible 

contradiction between the various instructions. Instruction No. 24 

stated as follows: 

Your award should include reasonable compensation for 

burial expenses and funeral services for the deceased and 

any reasonable medical. charges which were incurred in 

connection with the death. 

Defendant argues that this instruction fails to clearly tell the 

jury that the amount relating to medical and funeral expenses 
should be allocated to the estate on a survivorship claim. That 

argument does not consider the strongest argument under Instruction 

No. 34 which stated: 

Your award should include reasonable compensation to 

Brockiels estate for: 

The amount of lost earnings between the time 

of death and the time of trial; the present 

value of Aric Brockie's reasonable earnings 

after the date of trial during the remainder 

of his life expectancy; and reasonable 

compensation for decedent's loss of 

established course of life. (Emphasis 

supplied. ) 

Aric 

While rit is true that the special verdict form did not sufficiently 

advise the jury as to how to divide the damages, and while there 

was no explanation made by the plaintiff in the course of final 

argument, the above instruction certainly raises a significant 

issue. As a result, I believe it would have been proper for the 

majority opinion to conclude that there was sufficient confusion 

here to require a new trial and then to order a new trial on 

aspects of the case. This would include a new trial on the issue 

of the $170,000 of damages. It would also allow consideration of 

the Newville case which is hereafter mentioned. 

Issue I1 is stated by the majority opinion as: 

Did the District Court err by denying appellant's 

motion for a partial new trial on the issue of 

survivorship damages sustained by Aric Brockiels estate? 

The defendant's proposed issue is stated as follows: 

Whether a jury award allocating $170,000 in wrongful 

death damages to the decedent's heirs, but $0 dollars in 

survivorship damages to the decedentls estate, is 

reversible as contrary to the law when the plaint;iffappellant failed to provide any guidance or instructions 

to the jury concerning allocation of damages, and the 

jury followed all instructions actually given to it. 
The majority opinion concluded that its answer on issue one 

required a reversal of the District Court. The authority for this 

decision is Putnam in which the key distinction from this case was 

the award to Putnam of insignificant damages in the amount of 

$449.25. The distinction from Rudeck is that in Rudeck, the entire 

case was remanded for a new trial including the $75,000 awarded, as 

compared to the present case where the plaintiff is allowed to 

retain his share of the $170,000, but is allowed to go to trial on 

the issue of survivorship damages. 

For the reasons set forth under Issue I, I dissent from the 

conclusion that the District Court erred in denying the plaintiff's 

motion for a partial new trial on the issue of survivorship 

damages. 

Newville Application 

The majority opinion points out that the plaintiff asks us to 

apply Newville v. Montana Department of Family Services (Mont. 

19941, 51 St.Rep. 758, 882 P.2d 793, retroactively to the wrongful 

death award of $170,000. I think it important to quote the 

pertinent portions of Newville: 

We conclude that the allocation of percentases of 

liabilitv to non-oarties violates substantive due Drocess 

as to the plaintiffs. 

We hold that the following portion of 5 27-1-703 (4), 

MCA (1987), violates substantive due process: 

. . . persons released from liability by the 

claimant, persons immune from liability to the 

claimant, and any other persons who have a 

defense against the claimant . . . ... We further conclude that the remainder of the 

statute is capable of being executed in accordance with 

the legislative intent. As a result of our holding of 

unconstitutionality, we have eliminated that portion of 
the statute which allowed an allocation of neqliqence to 

non-uarties . . . (Emphasis supplied.) 

Newville, 51 St.Rep. at 766-67. For this analysis, the key aspect 

is that Newville determined there could be no allocation of 

negligence to non-~arties. 

In the present case, all of the parties and the District Court 

as well, concluded that § 27-1-703, MCA (1987), did allow an 

allocation of negligence to a non-party driver. As a result, the 

verdict form prepared by the plaintiff and accepted by the 

defendant and given by the District Court, and used by the jury, 

resulted in a jury finding that the non-party driver was 65 percent 

negligent and the defendant Omo was 35 percent negligent. At that 

point, the understanding of the parties and of the District Court 

was that the $170,000 in total damages would be reduced by the 65 

percent negligence which was attributable to the non-party driver. 

As a result of the interpretation in the majority opinion, this 

understanding is disregarded and the $170,000 is reinstated in 

full. On its face, this demonstrates a manifest injustice to the 

defendant. 

While the majority opinion does not explain the basis for all 

of its decision, I assume that it is relying on State ex rel. Deere 

and Co. v. District Court (l986), 224 Mont. 384, 730 P.2d 396, 

which concluded that the 1985 version of 5 27-1-703, MCA, excluded 

a party against whom recovery was not allowed--and having concluded 

that recovery was not allowed against a settling defendant, held 

that there was no right of contribution as to such settling 

defendant. After Deere was issued, § 27-1-703, MCA, was amended 

18 
substantially in 1987. This 1987 amendment included the statement 

that for the determination of the percentage of liability 

attributable to each party whose action contributed to the injury, 

the trier of fact should consider the negligence of a number of 

stated persons, and specifically included persons released from 

liability by the claimant and persons immune from liability to the 

claimant. The amended statute required the trier of fact to 

apportion the percentage of negligence to all such persons. I 

emphasize the distinction between allowing an allocation of 

neslisence to persons released from liability, and allowing 

contribution from such persons released from liability. While this 

view of the statute has not yet been considered by this Court--the 

contention could be made under the 1987 statute that there can be 

an allocation of negligence to a third-party defendant who has been 

released from liability even though there could be no right of 

contribution from that third-party defendant who has already 

settled with the plaintiff. As an example, in the present case, if 

the driver of the vehicle who had settled with the plaintiff had 

been named as a third-party defendant, and if the jury verdict had 

been the same as in the present case then the result could have 

been precisely the same as in the present case--that being an award 

of $170,000 for all of the damages of the plaintiff, but with the 

defendant Omo only responsible for 35 percent of the same under the 

revised statute. 

I conclude there is a manifest injustice in the application of 

Newville to the defendant in the manner which has been accomplished 
in the majority opinion. I conclude that Newville is not authority 

for the application made in the majority opinion because it did not 

decide whether a party settling with the claimant still could be 

named as third-party defendant to whom negligence could be 

allocated. 

I dissent from the majority opinion. 

~ustice 

Chief Justice J.A. Turnate joins in the foregoing dissent. 

I 

Justice Karla M. Gray joins in the foregoing dissent. 

'>,