Opinion

Krieser Ex Rel. Krieser v. Hobbs

166 F.3d 736
1999 U.S. App. LEXIS 1642

Court: Court of Appeals for the Fifth Circuit
Filed: Jan 28, 1999
Status: Published
Author: Barksdale
On the bench: Wisdom, Davis, Barksdale
Cited by: 67 cases
Authority: More cited than 93.7%

holding that a federal court sitting in diversity applies the substantive law of the state in which it sits

How later courts described this case

holding that a federal court sitting in diversity applies the substantive law of the state in which it sits
holding that a federal court sitting in diversity applies state substantive law
indicating that postjudgment interest runs from the date of the judgment in which the damages were assessed, not from the date of a modified judgment
stating federal courts exercising diversity jurisdiction apply the law of the forum state

Written by the judges who cited it.

The opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 98-60016

____________________

ROBERT KRIESER, as heir and wrongful death beneficiary of

Cynthia Renee Krieser (Deceased),

Plaintiff-Appellee,

versus

MILTON D. HOBBS; et al.,

Defendants,

BAPTIST MEMORIAL HOSPITAL, NORTH MISSISSIPPI,

Defendant-Appellant.

_________________________________________________________________

Appeals from the United States District Court

for the Northern District of Mississippi

_________________________________________________________________

January 28, 1999

Before WISDOM, DAVIS, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge.

Concerning the wrongful death of the daughter of Robert

Krieser, the jury in this Mississippi diversity action having found

Baptist Memorial Hospital–North Mississippi and a doctor in its

emergency room (the doctor had settled and been dismissed early in

the trial) at fault, and having apportioned the total $200,000 in

damages equally between the doctor and the hospital, chiefly at

issue in Baptist Memorial’s appeal is whether plaintiff’s earlier

$650,000 settlement with that defendant doctor should reduce

Baptist Memorial’s liability for the $100,000 in damages

apportioned to it by the jury. We AFFIRM, agreeing with the

district court that, under Mississippi’s statute for apportionment

of tortfeasor damages, MISS. CODE ANN. § 85-5-7, where fault has been

apportioned between settling and non-settling defendants, then,

notwithstanding the settlement, the non-settling defendant remains

liable for the amount of damages allocated to him in direct

proportion to his percentage of fault.

Also at issue is the date from which postjudgment interest

should run. Concluding, on this record, that it should run from

the July 1995 entry of the original judgment, we REFORM the amended

judgment in that respect.

In early 1990, Cynthia Renee Krieser, a college student,

became extremely ill and was taken to the emergency room at Baptist

Memorial. She was treated in the emergency room by Dr. Rogness.

After several hours of observation, Ms. Krieser was placed

under the care of Dr. Hobbs in another part of the hospital. After

diagnostic tests revealed an aortic dissection, Ms. Krieser was

flown to a hospital in Memphis, Tennessee, for treatment.

Ms. Krieser’s condition had become irreparable. She died nine

days later.

In 1992, Robert Krieser, the father of Ms. Krieser, filed this

diversity action against Baptist Memorial (claiming negligence by

its emergency medical technicians, emergency room nurses, and floor

nurses), and Drs. Rogness and Hobbs (claiming negligence in

diagnosis and treatment). The case was tried in early 1995.

On the third day of the eight-day trial, Krieser settled with

Dr. Rogness for $650,000. Dr. Rogness was dismissed from the

action that day.

As part of the jury instructions, the jury was informed about

the settlement with Dr. Rogness, but not its size, and was

instructed that the settlement should not affect its deliberations.

Pursuant to special interrogatories, the jury was to determine

whether Dr. Rogness, Dr. Hobbs and/or Baptist Memorial were at

fault; that is, had any been negligent, and if so, did such

negligence proximately contribute to Ms. Krieser’s death. For any

defendant found at fault, the jury was to determine the percentage

of the total damages attributable to that fault, after having first

assessed the total damages.

On 8 March 1995, the jury assessed no fault as to Dr. Hobbs

(the second treating physician at Baptist Memorial). It found

fault as to Dr. Rogness (who had settled) and Baptist Memorial;

assessed total damages at $200,000; and apportioned 50% of the

damages to the fault of Dr. Rogness and 50% to the fault of Baptist

Memorial.

The judgment, prepared pursuant to FED R. CIV. P. 58 by the

district court clerk, was dated 8 March 1995, the same day as the

verdict. But, that judgment provided erroneously that Dr. Rogness

(who, as noted, had been dismissed during trial as a result of his

settlement) was liable for $100,000 in damages, as was Baptist

Memorial. Pursuant to the district judge’s instructions, the

judgment was not entered until 3 July 1995. Krieser v. Baptist

Memorial Hospital-North Mississippi, 984 F.Supp. 463, 466 & n.3

(N.D. Miss 1997).

Post-trial, Baptist Memorial moved to credit Dr. Rogness’

$650,000 settlement against its $100,000 liability, and to remove

the error in the judgment regarding the liability of Dr. Rogness;

Krieser moved for a new trial on damages based on their inadequacy,

and for postjudgment interest from the date of the verdict, rather

than the delayed entry of judgment. The district court delayed

ruling on these motions until December 1997.

Baptist Memorial’s motion for a credit as to the settlement

and Krieser’s motion for a new trial on damages were denied. An

amended judgment, entered on 16 December 1997, removed the

reference to Dr. Rogness and provided for postjudgment interest

from the date of the verdict, 8 March 1995.

II.

Baptist Memorial contends that the $650,000 settlement should

be credited against the $100,000 for which it is liable; and that

postjudgment interest should run only from the entry of the amended

judgment.

In support of the claimed settlement credit, Baptist Memorial

urges that Mississippi’s “one-recovery” or “one-satisfaction” rule

bars a plaintiff from recovering more than the total awarded

damages. Krieser counters that Mississippi’s 1989 tort reform

statute, MISS. CODE ANN. § 85-5-7, pursuant to which the damages were

apportioned, undermines the application of the one-recovery rule.

It goes without saying that, for a diversity action, we apply

state substantive law, e.g., Gasperini v. Center for Humanities,

Inc., 518 U.S. 415, 427 (1996); and that we review de novo the

district court’s conclusions of law, such as the effect to be given

a settlement under Mississippi law, e.g., Bertram v. Freeport

McMoran, Inc. 35 F.3d 1008, 1019 (5th Cir. 1994). But, because the

Mississippi Supreme Court has not addressed the impact of § 85-5-7

on a settlement’s effect on a later judgment, we must make an “Erie

guess” how that court would decide the issue, as per Erie R. Co. v.

Tompkins, 304 U.S. 64 (1938). E.g., H.E. Butt Grocery Co. v.

National Union Fire Ins. Co., 150 F.3d 526, 530 (5th Cir. 1998);

Farm Credit Bank of Texas v. Guidry, 110 F.3d 1147, 1149 (5th Cir.

1997).

Moreover, under different tort liability schemes, a settlement

with one tortfeasor affects a judgment against non-settling

defendants in different ways. See generally McDermott, Inc. v.

AmClyde, 511 U.S. 202, 208-21 (1994) (summarizing approaches in the

context of a decision on admiralty law). The two broad

alternatives are (1) pro-tanto (“to the same extent”) reduction,

under which a settlement reduces the judgment against remaining

defendants dollar for dollar; and (2) proportionate share

reduction, under which a settlement reduces the judgment in

proportion to the settling tortfeasor’s fault. Id. at 208-09. A

pro-tanto regime may or may not allow a contribution action by a

non-settling defendant against a settling defendant who paid an

inadequate share. Id.

Various other schemes are possible as well. For example, New

York uses whichever method is greater, see N.Y.G.O.L. § 15-108;

while in Texas, a defendant may elect between a pro-tanto rule and

a complicated schedule, see TEX. CIV. PRAC. & REM. CODE ANN. §§ 33.012,

33.014. It is also possible to reduce a judgment in proportion to

the number of settling tortfeasors, rather than by their fault;

such a scheme is often called “pro rata” reduction, though it is

more informatively termed “per capita”. See McDermott, 511 U.S. at

210 & n.9; Dobson v. Camden, 705 F.2d 759, 762 (5th Cir. 1983).

The choice among methods represents a policy choice for the

State of Mississippi. The only legislation touching directly upon

the effect of a settlement, MISS. CODE ANN. § 85-5-1, applies to

settlements in cases of “joint or joint and several indebtedness”.

While some courts refer to this section in discussing tortfeasors

more generally, rather than debtors per se, e.g., Smith v. Falke,

474 So. 2d 1044, 1045 (Miss. 1985), this much is clear: “joint or

joint and several indebtedness” does not include the “several only”

liability contemplated in § 85-5-7, Mississippi’s earlier-cited

tort reform statute. And, as explained below, § 85-5-7 applies to

the question at hand.

Beyond the legislature, of course, Mississippi courts have

long assumed a gap-filling role in specifying the effects of

settlements. Almost a century ago, the traditional pro-tanto rule

was stated in Bailey v. Delta Electric Light, Power, & Mfg. Co., 38

So. 354, 355 (Miss. 1905):

It is a universally established principle of

law that joint tort feasors are both jointly

and severally liable, and may be proceeded

against either singly or jointly,

individually, or all combined. It is also

well settled that, where a party has once

received full satisfaction and compensation

for an injury inflicted, no matter from which

one of several tort feasors, all are thereby

released.

...

... [A non-settling defendant] would have the

right to claim, should its liability be

established, ... to have credited the amount

received by the [plaintiff] from the [settling

tortfeasor] upon the amount of damages which

the [plaintiff] may have sustained.

Bailey’s logic flows from the premise with which it begins:

joint-and-several liability. The rule under joint-and-several

liability – and its rootedness in such regimes of liability – are

illustrated well by Medley v. Webb, 288 So. 2d 846 (Miss. 1974).

There, after a verdict, the plaintiff settled with one defendant,

who paid all but $2.00 of the judgment, while apparently agreeing

that the plaintiff could seek recovery in another action against

the other tortfeasor:

The issue here is whether or not a judgment

against one of the joint tort-feasors for all

the damages found to be due the plaintiff by

the jury is fully satisfied when the amount of

the judgment is paid, although the party

paying the judgment agrees that the plaintiff

may sue another joint tort-feasor.

...

... The plaintiff has the right to sue either

one of the joint tort-feasors for all the

damages accruing to the plaintiff, inasmuch as

a joint tort-feasor is liable for all the

damages due to the plaintiff. If the

plaintiff elects to sue one joint tort-feasor

for all the damages alleged to be due to him,

and the jury determines the amount of damages

due to the plaintiff as a result of the

accident, the amount due then becomes fixed.

288 So. 2d at 848-49 (emphasis added).

When there is more than one tortfeasor, pro-tanto reduction of

a verdict, when there has been a settlement, is a response to the

phenomenon of the defendants’ intersecting obligations. In other

words, a plaintiff is entitled to recover from one, or the other,

or a mixture between them. In its desire to ensure, to the extent

it can, that a plaintiff be compensated, the joint-and-several

regime affords a plaintiff overlapping remedies. These overlapping

remedies, however, must not become multiple remedies, and so pro-

tanto reduction is applied.

Mississippi has joined many other States in modifying joint-

and-several liability; it did so in 1989. 1989 Miss. Laws ch. 311,

MISS. CODE ANN. § 85-5-7; see Kathleen M. O'Connor and Gregory P.

Sreenan, Apportionment of Damages: Evolution of a Fault-Based

System of Liability for Negligence, 61 J. AIR LAW & COMM. 365, 374-81

(1996)(documenting trend). Indeed, what Bailey understood in 1905

to be a “universally established principle” is fast becoming a

minority view. Almost 40 States have now limited joint-and-several

liability in some way. See Fernanders v. Marks Const. of South

Carolina, Inc., 499 S.E.2d 509, 512 & n.9 (S.C.App. 1998) (listing

37 statutes).

Section 85-5-7 provides, with several exceptions (tortfeasors

acting in concert, employers and employees, and when necessary in

order for the plaintiff to recover at least 50% of his total

assessed damages), for tort liability that is several, rather than

joint-and-several. Therefore, generally, a defendant is liable for

damages only in proportion to his own percentage of fault. The

statute reads in full:

(1) As used in this section “fault”

means an act or omission of a person which is

a proximate cause of injury or death to

another person or persons, damages to

property, tangible or intangible, or economic

injury, including but not limited to

negligence, malpractice, strict liability,

absolute liability or failure to warn.

“Fault” shall not include any tort which

results from an act or omission committed with

a specific wrongful intent.

(2) Except as may be otherwise provided

in subsection (6) of this section, in any

civil action based on fault, the liability for

damages caused by two (2) or more persons

shall be joint and several only to the extent

necessary for the person suffering injury,

death or loss to recover fifty percent (50%)

of his recoverable damages.

(3) Except as otherwise provided in

subsections (2) and (6) of this section, in

any civil action based on fault, the liability

for damages caused by two (2) or more persons

shall be several only, and not joint and

several and a joint tort-feasor shall be

liable only for the amount of damages

allocated to him in direct proportion to his

percentage of fault. In assessing percentages

of fault an employer and the employer’s

employee or a principal and the principal’s

agent shall be considered as one (1) defendant

when the liability of such employer or

principal has been caused by the wrongful or

negligent act or omission of the employee or

agent.

(4) Any defendant held jointly liable

under this section shall have a right of

contribution against fellow joint tort-

feasors. A defendant shall be held

responsible for contribution to other joint

tort-feasors only for the percentage of fault

assessed to such defendant.

(5) Nothing in this section shall

eliminate or diminish any defenses or

immunities which currently exist, except as

expressly noted herein.

(6) Joint and several liability shall be

imposed on all who consciously and

deliberately pursue a common plan or design to

commit a tortious act, or actively take part

in it. Any person held jointly and severally

liable under this section shall have a right

of contribution from his fellow defendants

acting in concert.

(7) In actions involving joint tort-

feasors, the trier of fact shall determine the

percentage of fault for each party alleged to

be at fault.

(8) Nothing in this section shall be

construed to create a cause of action.

Nothing in this section shall be construed, in

any way, to alter the immunity of any person.

MISS. CODE ANN. § 85-5-7.

As our court noted recently, Mississippi courts have not had

much occasion to apply the statute. See Whitehead v. Food Max of

Mississippi, Inc., ___ F.3d ___, 1998 WL 876903, *15-*16 (5th Cir.

1998) (listing references to the section). None of these

referenced cases concerns the effect of a settlement on non-

settlors’ liability for damages. Very recently, however, the

Mississippi Supreme Court held that allocation of fault under the

section to a settling tortfeasor is proper, construing “party” in

§ 85-5-7(7) (allowing a factfinder’s allocation of fault among

“parties”) to “refer[] to any participant to an occurrence which

gives rise to a lawsuit, and not merely the parties to a particular

lawsuit or trial”. In re Estate of Hunter v. General Motors Corp.,

1999 WL 12908, *14 (Miss. 1999). The court explicitly reserved

judgment on whether the pro-tanto rule survived the enactment of §

85-5-7. See id., *22 & n.8.

This statute was the basis for the apportionment in district

court. In its brief on appeal, Baptist Memorial did not contest

the jury being permitted to find fault as to the settling/dismissed

defendant, and to apportion damages to him.1 On appeal, however,

there is some controversy regarding the nature of the liability.

We note parenthetically, although it only concerns how the parties

have phrased their positions, that § 85-5-7 distinguishes “joint

tortfeasors” from those tortfeasors subject to “joint liability”.

As noted, § 85-5-7(3) provides that a “joint tortfeasor” is

ordinarily not subject to joint liability. Baptist Memorial is not

a “several tortfeasor”, as Krieser terms it; it is a joint

tortfeasor subject only to several liability.

In that Krieser’s complaint claimed that Baptist Memorial and

Dr. Rogness (who settled during trial) were jointly and severally

liable, Baptist Memorial insists that Krieser may not take an

inconsistent position on appeal. However, the claim in the

complaint was based, at least in part, on inadequate development of

the facts. The complaint alleged that Baptist Memorial employed

Dr. Rogness; this was denied by both. In discovery, Baptist

Memorial claimed that Dr. Rogness was an independent contractor.

This was apparently accepted by Krieser; the pretrial order does

not list Dr. Rogness’ employment among the issues for trial.

Consistent with this, the jury was permitted to apportion separate

fault to the doctor and to the hospital. Had they instead been an

As noted supra, the Mississippi Supreme Court in Estate of

Hunter very recently approved apportionment of fault to settling

tortfeasors.

employer and employee, the jury would have considered them as one

defendant and assessed only one percentage of fault, pursuant to

the second sentence of § 85-5-7(3) (“In assessing percentages of

fault an employer and the employer’s employee or a principal and

the principal’s agent shall be considered as one (1) defendant when

the liability of such employer or principal has been caused by the

wrongful or negligent act or omission of the employee or agent.”).

Additionally, we note that, in district court, Baptist

Memorial urged application of the apportionment statute. While

Baptist Memorial does not explicitly contend that it faces joint-

and-several liability, such a position would be far more blatantly

in conflict with its own contentions in district court than is

Krieser’s here, given the need for factual development at the time

of his complaint. In any event, it is clear that Baptist

Memorial’s liability is, as § 85-5-7 plainly requires, several

only, and not joint-and-several.

The parties conceded at oral argument on appeal that there

were no decisions on point by Mississippi’s Supreme Court. That

appears to still be the case. While Mississippi courts have

addressed the effect of partial settlements three times in recent

years, none of these cases has applied § 85-5-7. See Turner v.

Pickens, 711 So. 2d 891 (Miss. 1998) (after remand, a plaintiff’s

acceptance from one defendant of a remittitur releases all

defendants); Robles By and Through Robles v. Gollott and Sons

Transfer and Storage, Inc., 697 So. 2d 383 (Miss. 1997) (informing

a jury of a prior lawsuit and settlement is not error); McBride v.

Chevron U.S.A., 673 So. 2d 372 (Miss. 1996) (plaintiff’s

comparative negligence applied to damages after subtracting

settlement, not before).

Because Turner and McBride involved injuries sustained before

§ 85-5-7's effective date, 1 July 1989, the section did not apply.

See Turner, 711 So. 2d at 892 (injury in 1985); McBride, 673 So. 2d

at 374 (injury in 1987); 1989 Miss. Laws ch. 311 § 7 (section

“shall apply only to causes of action accruing on or after July 1,

1989”). And, as noted supra, McBride specifically limited its

holding “to cases in which, as here, the trial court instructed the

jury to consider only the relative culpabilities of the plaintiff

and the non-settling defendant(s) in apportioning fault under

comparative negligence principles”. 673 So. 2d at 381 (emphasis

added).

Although the injury in Robles took place in August 1989, after

the effective date of § 85-5-7, Robles quotes language from pre- §

85-5-7 Whittley v. City of Meridian, 530 So. 2d 1341, 1346 (Miss.

1988), stating that a jury should be told of a settlement’s

existence but not its amount, and “the trial judge would reduce the

amount awarded by the jury by the amount of the settlement by the

other defendant or defendants”. However, no apportionment of fault

took place at the trial court in Robles, because the jury found no

liability. Whittley was quoted at length, see 697 So. 2d at 384-

85, but only to explain the traditional rule that juries are to be

informed of settlements.

Finally, our comment on Mississippi law in Hunnicutt v.

Wright, 986 F.2d 119, 125 (5th Cir. 1993), that, “where a party

settles with one defendant, any remaining defendant receives credit

for the settlement received from the released defendant”, likewise

considered only pre- § 85-5-7 law. While the fact was not stated

in the opinion, the injury in Hunnicutt took place in 1988, prior

to § 85-5-7’s effective date.

As discussed above, Mississippi’s rule of pro-tanto reduction

is premised and rooted in joint-and-several liability. Moreover,

§ 85-5-7 itself operates to reduce the total damages in proportion

to the fault of a settling tortfeasor/defendant, just as it reduces

the total damages in proportion to the fault of any other

tortfeasor/defendant. The statute therefore establishes the chief

alternative to pro-tanto reduction, to which Baptist Memorial does

not object. In effect, by seeking a pro-tanto reduction, as well

as application of the apportionment statute, Baptist Memorial

advocates, not a pure pro-tanto reduction of damages for previous

settlements, but a rule reducing its liability for damages twice:

first, by the settling defendant’s share of fault; and second, by

the amount of that settlement, if greater.

Set-offs for settlement and the “one-satisfaction” rule exist

to prevent the plaintiff from recovering twice from the same

assessment of liability. But, where liability is not joint-and-

several, and each defendant instead bears liability for damages

only proportionate to his own fault, there is no assessment of

liability for damages common to the settling and non-settling

defendants. Accordingly, the settlement has an entirely separate

basis from the apportioned damages, and the one-recovery rule does

not apply. The “one satisfaction” rule applies to situations like

the one in Turner, in which liability from two parties is rooted in

a single source (there, the remittitur). Where, as here, liability

or payment is separately rooted, the rule is inapposite.

We think it is clear that the Mississippi Supreme Court, if

faced with this question, would follow the large number of other

courts who have understood legislative limitation of joint-and-

several liability to render incompatible a pro-tanto credit for

non-settling tortfeasors. Courts in at least 16 other

States—Arizona, California, Colorado, Florida, Indiana, Iowa,

Kansas, Kentucky, New Jersey, New Mexico, Pennsylvania, Tennessee,

Texas, Washington, West Virginia, and Wyoming—have so overridden or

limited pro-tanto regimes, many of which had had statutory

standing.

We find persuasive these cases’ number and, most especially,

their reasoning. For example, Gemstar Ltd. v. Ernst & Young, 917

P.2d 222, 237 (Ariz. 1996) (citations and internal quotations

omitted) held in pertinent part:

[R]educing plaintiffs' award by the amount of

the [previous] settlement would undermine the

policy justifications underlying several only

liability. Under several only liability, the

defendant is liable only for the amount of the

plaintiff's damages that is proportional to

the defendant's percentage of fault. [Arizona

Revised Statutes] § 12-2506(A). Thus,

offsetting a plaintiff's damages by the amount

of a non-party's settlement is unnecessary

because the defendant pays only his share of

the damages. A contrary rule would (1) give

the benefit of an advantageous settlement to

the non-settling tortfeasor, rather than to

the plaintiff who negotiated the settlement,

(2) discourage some defendants from settling

in anticipation of acquiring the benefits of

the settlements of their co-tortfeasors, and

(3) neglect to recognize the fact that

settlement dollars are not synonymous with

damages but merely a contractual estimate of

the settling tortfeasor's liability.

As another example, the pertinent holding in Waite v. Morisette,

843 P.2d 1121, 1124 (Wash.App.), amended, 851 P.2d 1241 (1993),

follows:

Where proportionate liability applies, as

here, a defendant can never be liable for more

than his percentage share, because recovery is

limited to his proportionate share of the

total damages. The reasons for allowing

credits where the liability is joint and

several are not present where liability is

proportionate.

See also Hoch v. Allied-Signal, Inc., 29 Cal.Rptr.2d 615, 621-

26 (Cal.App. 1994); Smith v. Zufelt, 880 P.2d 1178, 1183-88 (Colo.

1994); Kussman v. City and County of Denver, 706 P.2d 776, 777-82

(Colo. 1985) (later overridden by statute); Wells v. Tallahassee

Memorial Regional Medical Center, Inc., 659 So. 2d 249, 250-52

(Fla. 1995); Barber v. Cox Communication, Inc., 629 N.E.2d 1253,

1258 (Ind.App. 1994); Thomas v. Solberg, 442 N.W.2d 73, 73-78 (Iowa

1989); Glenn v. Fleming, 732 P.2d 750, 755 (Kan. 1987) (and cf.

York v. InTrust Bank, N.A., 962 P.2d 405, 431-32 (Kan. 1998),

reaffirming pro-tanto credit where joint-and-several liability

remains); D. D. Williamson & Co., Inc. v. Allied Chemical Corp.,

569 S.W.2d 672, 673-74 (Ky. 1978); Rogers v. Spady, 371 A.2d 285,

287-88 (N.J.Super.A.D. 1977) (later overridden by statute); Johnson

v. American Homestead Mortg. Corp., 703 A.2d 984, 987-88

(N.J.Super.A.D. 1997); Wilson v. Galt, 668 P.2d 1104, 1107-09

(N.M.App. 1983); Charles v. Giant Eagle Markets, 522 A.2d 1, 2-5

(Pa. 1987); Varner v. Perryman, 969 S.W.2d 410, 413-14 (Tenn.

1997); Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 431 (Tex.

1984) (later overridden by statute); Johnson by Johnson v. General

Motors Corp., 438 S.E.2d 28, 33 (W.Va. 1993); Haderlie v.

Sondgeroth, 866 P.2d 703, 708-712 (Wyo. 1993). Moreover, in

construing § 85-5-7, the Mississippi Supreme Court recently

followed the lead of courts from Florida and Tennessee in

construing those states’ modification of joint-and-several

liability. See Estate of Hunter, 1999 WL 12908, *12 (citing Fabre

v. Marin, 623 So. 2d 1182 (Fla. 1993), and Ridings v. Ralph M.

Parsons Co., 914 S.W.2d 79 (Tenn. 1996)).

The only States we have found maintaining a pro-tanto credit

to non-settling defendants where joint-and-several liability has

been limited are Idaho and Maine. Curtis v. Canyon Highway Dist.

No. 4, 831 P.2d 541, 545-47 (Idaho 1992), overruled on other

grounds, Lawton v. City of Pocatello, 886 P.2d 330 (Idaho 1994);

Hoitt v. Hall, 661 A.2d 669, 673 (Me. 1995); Hewitt v. Bahmueller,

584 A.2d 664, 666 (Me. 1991).

The case from Idaho, Curtis, held that legislative

modification of joint-and-several liability did not impliedly

repeal its tortfeasor release statute. However, Curtis confronted

a specific statute mandating a pro-tanto credit, as well as a rule

limiting implied repeal unless two statutes are “manifestly

inconsistent with and repugnant to each other”, 831 P.2d at 546.

By an amendment that predated Curtis, but did not apply to it, the

Idaho Legislature corrected this error, acknowledging the

incompatibility of pro-tanto and several-only regimes:

Under the present system, in multiple

defendant cases, each defendant only pays its

pro rata share of the total damages and,

therefore, should not be entitled to any

credit for the pro rata share paid by another

defendant in settlement. The proposed

amendments ... make the section consistent

with the prior elimination of joint and

several liability.

Tuttle v. Wayment Farms, Inc., 952 P.2d 1241, 1244 (Idaho 1998)

(quoting “[t]he statement of purpose for the 1991 amendment of

[Idaho Code] § 6-805”).

The cases from Maine, Hewitt and Hoitt, appear to be the

result of idiosyncratic drafting and an explicit statute mandating

the pro-tanto rule; they have been subject to extensive criticism.

See Arlyn H. Weeks, The Unsettling Effect of Maine Law on

Settlement in Cases Involving Multiple Tortfeasors, 48 ME. L. REV.

77 (1996).

In sum, the majority rule is decidedly that a pro-tanto/one-

satisfaction rule has no application to liability no longer both

joint and several. See Wells, 659 So. 2d at 25 (“clearly the

majority rule”).2

Indeed, regarding the pro-tanto approach, Baptist Memorial

highlights 22 AM. JUR. 2d Damages § 559:

The consideration received by one injured as a

consequence of a tort committed by two or more

tortfeasors operates to reduce, pro tanto (to

the same extent), the amount of damages he is

entitled to recover against any other

tortfeasor responsible for his injuries.

However, § 561 in that same source advocates departure from that

rule in the light of an apportionment statute:

The rule that recovery from nonsettling

tortfeasors is reduced pro tanto by the amount

received in settlement from another tortfeasor

may be affected by a comparative negligence

statute that apportions negligence to each

party, including each of the defendants. If

the statute provides that each tortfeasor is

Baptist Memorial’s characterization of Krieser having a

“recovery of $750,000 on a $200,000 verdict” is a red herring.

Obviously, Krieser will not recover $750,000 on the verdict (now

judgment) itself; rather, he obtained $650,000 from the settlement

and was awarded $100,000 by the verdict/judgment. Each amount

flows from a distinct source and is footed on a distinct basis. It

is not surprising that different dispute-resolution methods produce

different, or “inconsistent”, results; nor should we force a

harmonization between them.

Krieser bore the risks both of an inadequate settlement with

respect to Dr. Rogness and of an inadequate verdict with respect to

Baptist Memorial. For example, assume that, after Krieser had

settled for $650,000 with the doctor, the jury had returned a

verdict for $1,000,000, but had apportioned 90%, instead of 50%,

of the fault ($900,000) to the doctor and only 10% ($100,000) to

the hospital. Krieser would have recovered only $750,000, instead

of the $1,000,000 awarded by the jury. This is because, instead of

the doctor being liable for $900,000 pursuant to the verdict,

Krieser had accepted a settlement from him for $250,000 less. As

another example, there appears to have been great uncertainty as to

responsible for the percentage of negligence

attributed to him, the judgment against each

defendant is not reduced by the amount of a

settlement paid by other tortfeasors.

(Emphasis added.)

the probable damages arising out of this tragic death, due to the

underlying physical problem, cause, or defect. In this regard,

although facially $200,000 might seem inadequate in a wrongful

death case, especially as to Ms. Krieser, the district court denied

Krieser’s motion for a new trial on damages. As a final example,

Krieser settled early during trial, when, presumably, the result

was far less certain. In sum, Krieser is entitled to the fruits of

each method of dispute-resolution.

On this question of claimed overcompensation, we find quite

persuasive the comments of the Texas Supreme Court in Duncan, 665

S.W.2d at 430-431:

Plaintiffs bear the risk of poor settlements;

logic and equity dictate that the benefit of

good settlements should also be theirs.

...

... [A]ny enrichment of plaintiffs under the

new system of comparative causation is not

unjust, for the simple reason that no one is

harmed. The settling defendant cannot

complain, because he agreed to pay. The non-

settling defendant has no right to complain,

because he was not a party to and is not

affected by the settlement.