Modular Building Consultants of West Virginia, Inc. v. Poerio, Inc.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2015 Term FILED

May 21, 2015

RORY L. PERRY II, CLERK

No. 14-0158 SUPREME COURT OF APPEALS

OF WEST VIRGINIA

MODULAR BUILDING CONSULTANTS OF WEST VIRGINIA, INC. and

BILLY JOE MCLAUGHLIN,

Defendants/Third-Party Plaintiffs Below, Petitioners

v.

POERIO, INC.,

Third-Party Defendant Below, Respondent

Appeal from the Circuit Court of Putnam County

The Honorable Joseph K. Reeder, Judge

Case No. 11-C-277

AFFIRMED

Submitted: March 10, 2015

Filed: May 21, 2015

Brent K. Kesner, Esq. Benjamin T. Hughes, Esq.

Ernest G. Hentschel, II, Esq. PULLIN, FOWLER, FLANAGAN,

KESNER & KESNER, PLLC BROWN & POE, PLLC

Charleston, West Virginia Charleston, West Virginia

Attorneys for Modular Building Attorney for Respondent

Consultants of West Virginia, Inc. and

Billy Joe McLaughlin

CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.

JUSTICE BENJAMIN concurs in part and dissents in part and reserves the right to file a

separate opinion.

JUSTICE LOUGHRY concurs and reserves the right to file a concurring opinion.

SYLLABUS BY THE COURT

1. “The appellate standard of review for an order granting or denying a

renewed motion for a judgment as a matter of law after trial pursuant to Rule 50(b) of the

West Virginia Rules of Civil Procedure [1998] is de novo.” Syl. Pt. 1, Fredeking v.

Tyler, 224 W.Va. 1, 680 S.E.2d 16 (2009).

2. “When this Court reviews a trial court’s order granting or denying a

renewed motion for judgment as a matter of law after trial under Rule 50(b) of the West

Virginia Rules of Civil Procedure [1998], it is not the task of this Court to review the

facts to determine how it would have ruled on the evidence presented. Instead, its task is

to determine whether the evidence was such that a reasonable trier of fact might have

reached the decision below. Thus, when considering a ruling on a renewed motion for

judgment as a matter of law after trial, the evidence must be viewed in the light most

favorable to the nonmoving party.” Syl. Pt. 2, Fredeking v. Tyler, 224 W.Va. 1, 680

S.E.2d 16 (2009).

3. “In determining whether there is sufficient evidence to support a jury

verdict the court should: (1) consider the evidence most favorable to the prevailing party;

(2) assume that all conflicts in the evidence were resolved by the jury in favor of the

prevailing party; (3) assume as proved all facts which the prevailing party's evidence

tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences

i

which reasonably may be drawn from the facts proved.” Syl. Pt. 5, Orr v. Crowder, 173

W.Va. 335, 315 S.E.2d 593 (1983).

4. “Although the ruling of a trial court in granting or denying a motion

for a new trial is entitled to great respect and weight, the trial court’s ruling will be

reversed on appeal when it is clear that the trial court has acted under some

misapprehension of the law or the evidence.” Syl. Pt. 4, Sanders v. Georgia-Pacific

Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).

5. “When jury verdicts answering several questions have no logical

internal consistency and do not comport with instructions, they will be reversed and the

cause remanded for a new trial.” Syl. Pt. 1, Reynolds v. Pardee & Curtin Lumber Co.,

172 W. Va. 804, 310 S.E.2d 870 (1983).

6. “Once comparative fault in regard to contribution is recognized,

recovery can be had by one joint tortfeasor against another joint tortfeasor inter se

regardless of their respective degree of fault so long as the one has paid more than his pro

tanto share to the plaintiff.” Syl. Pt. 4, Sitzes v. Anchor Motor Freight, Inc., 169 W. Va.

698, 289 S.E.2d 679 (1982).

7. “A party in a civil action who has made a good faith settlement with

the plaintiff prior to a judicial determination of liability is relieved from any liability for

ii

contribution.” Syl. Pt. 6, Bd of Educ. of McDowell Co. v. Zando, Martin & Milstead,

Inc., 182 W. Va. 597, 390 S.E.2d 796 (1990).

8. “The law favors and encourages the resolution of controversies by

contracts of compromise and settlement rather than by litigation[.]” Syl. Pt. 1, in part,

Sanders v. Roselawn Mem’l Gardens, 152 W. Va. 91 159 S.E.2d 784 (1968).

9. Where a tortfeasor settles with an injured plaintiff and obtains a

release for a joint tortfeasor, such release preserves the settling tortfeasor’s right of

contribution against the released joint tortfeasor.

10. “In order to obtain a proper assessment of the total amount of the

plaintiff’s contributory negligence under our comparative negligence rule, it must be

ascertained in relation to all of the parties whose negligence contributed to the accident,

and not merely those defendants involved in the litigation.” Syl. Pt. 3, Bowman v.

Barnes, 168 W. Va. 11, 282 S.E.2d 613 (1981).

11. “It is improper for counsel to make arguments to the jury regarding

party’s omission from a lawsuit or suggesting that the absent party is solely responsible

for the plaintiff’s injury where the evidence establishing the absent party’s liability has

not been fully developed.” Syl. Pt. 2, Doe v. Wal-Mart Stores, Inc., 210 W. Va. 664, 558

S.E.2d 663 (2001).

iii

12. “‘The common law is not to be construed as altered or changed by

statute, unless legislative intent to do so be plainly manifested.’ Shifflette v. Lilly, 130

W.Va. 297, [43 S.E.2d 289 1947].” Syl. Pt. 4, Seagraves v. Legg, 147 W.Va. 331, 127

S.E.2d 605 (1962).

iv

WORKMAN, Chief Justice:

This is an appeal from the circuit court’s denial of petitioner Modular

Building Consultants of West Virginia, Inc.’s (hereinafter “Modular”) motion for

judgment as a matter of law or for a new trial following an adverse jury verdict on

Modular’s claims for contribution and indemnification. Modular contends that 1) the

jury’s finding that respondent Poerio, Inc. (hereinafter “Poerio”) was negligent is

inconsistent with its finding that Poerio did not breach the lease agreement; 2) the circuit

court erred in ruling that Modular’s contribution claim was extinguished by its good faith

settlement with the injured plaintiff; and 3) the circuit court erred in allowing the injured

plaintiff’s comparative fault to be assessed by the jury.

Upon careful review of the briefs, the appendix record, the arguments of

the parties, and the applicable legal authority, we conclude that the circuit court erred in

finding that Modular’s contribution claim was extinguished as a matter of law. However,

we further find that the jury’s verdict was neither inconsistent nor impermissibly

considered the comparative fault of the injured plaintiff. We find, therefore, that

judgment was properly entered in favor of Poerio and affirm the order of the circuit court.

1

I. FACTS AND PROCEDURAL HISTORY

On July 14, 2011, Jarrett Smith (hereinafter “Mr. Smith”) was injured when

his vehicle collided with a truck owned by Modular, operated by Billy Joe McLaughlin

(hereinafter “Mr. McLaughlin”). Just prior to the collision, Mr. McLaughlin had arrived

at a jobsite at Geary Elementary School to retrieve a Modular storage container being

leased and utilized by respondent Poerio, the general contractor on the project. Upon

arrival at the jobsite, Mr. McLaughlin testified that the main entrance was blocked by

stacks of bricks and vehicles, requiring him to utilize the construction entrance located

closer to where the storage unit was sitting. Upon attempting to access the construction

entrance, Mr. McLaughlin testified that he was unable to pull his truck fully into the

jobsite because the clearance he required was partially obstructed by the storage container

itself and a white work van. As a result, he stopped his truck while it was protruding into

the main roadway and exited his vehicle to adjust the truck’s axle, allowing him to make

a tighter turn into the jobsite and clear the white work van and container. Upon Mr.

McLaughlin’s return to his vehicle to continue pulling into the jobsite, Mr. Smith collided

with Mr. McLaughlin’s truck sustaining serious injuries. At trial, Poerio offered

witnesses to testify that the main entrance was in fact not obstructed by bricks or vehicles

at the time of the accident.

The lease agreement between Modular and Poerio for the subject storage

container contained indemnity language requiring Poerio to indemnify Modular from

“any loss, cost or expenses and from any liability to any person on account of damage to

2

person or property arising out of any failure of [Poerio] to comply in any respect with

and perform any of the requirements and provisions of this Lease.” (emphasis added). As

pertains to this case, the lease required Poerio to “provide free and clear access for

delivery and return of the Equipment by standard mobile transport vehicles.”

Mr. Smith filed suit against Modular, alleging negligence. Modular then

brought a third-party complaint against Poerio, making claims for contribution and

indemnification pursuant to the lease agreement. Specifically, Modular claimed that

Poerio breached the provision of the lease agreement requiring it to provide “free and

clear access” for return of the storage container.1 Notably, Mr. Smith asserted no direct

claims against Poerio at any time. Shortly before trial was to commence, Modular settled

with Mr. Smith and obtained a release from him releasing both Modular and Poerio.2

Trial as to Modular’s third-party complaint proceeded and the jury was asked to

1

The lease further provided that Poerio “shall not remove the Equipment from the

location specified by [Poerio] without prior written approval from [Modular.]” Although

at trial, there was some discussion about the fact that Poerio had moved the storage

container from its original location without Modular’s permission (along with argument

that “removal” of the equipment from the site was different than moving it to another

location within the site), Modular ultimately conceded that it did not base its contention

that Poerio breached the lease on this provision.

2

Modular settled with Mr. Smith and his wife, in exchange for which Mr. Smith

and his wife expressly released both Modular and Poerio. The Release further contained

language stating that “[n]othing contained within this Release of All Claims is intended

to, nor should the same be construed to represent any release or discharge of [Modular’s]

third-party claims for contribution and/or indemnification against Poerio, which claims

are expressly preserved.” The Release further states that “[Modular] act[s] specifically to

preserve their right to recover contribution and/or indemnification from Poerio and/or its

insurer for those sums paid to the claimants pursuant to this Release of All Claims[.]”

3

determine 1) whether Poerio breached its lease agreement with Modular; and 2) whether

Poerio, Modular, or Mr. Smith were negligent and in what percentages. The jury found

that Poerio did not breach the lease agreement, but found that Poerio was twenty percent

at fault for the accident. The jury also assigned twenty percent of fault to Modular and,

critically, assigned sixty percent of fault to Mr. Smith. Upon entry of the judgment order,

the circuit court entered judgment in Poerio’s favor on its contribution claim on the basis

of the apportionment of fault and as a matter of law based upon Jennings v. Farmers Mut.

Ins. Co., 224 W. Va. 636, 687 S.E.2d 574 (2009), which the circuit court read to

extinguish the contribution claim upon Modular’s settlement with Mr. Smith.3

Modular filed a motion for judgment as a matter of law, or alternatively, a

new trial. First, Modular argued that the jury’s finding that Poerio did not breach the

lease agreement was inconsistent with its finding that Poerio was negligent. Modular

contended that the only possible way Poerio could have been negligent for the subject

accident was by failing to provide free and clear access to the storage unit and that failing

to provide free and clear access was a violation of the lease agreement. Without

specifically reconciling the two jury findings, the circuit court concluded that it was

exclusively the jury’s province to weigh the evidence and could make both findings.

Secondly, Modular argued that its contribution claim was not extinguished by settling

3

The circuit court apparently reconsidered the propriety of allowing the

contribution claim to go to the jury, which issue had been raised prior to trial and decided

in favor of Modular.

4

with Mr. Smith because unlike the settling party in Jennings, it had obtained a release for

both its and Poerio’s liability as part of the settlement, thereby preserving its contribution

claim. The circuit court, recognizing this as an issue of first impression, nevertheless

found Jennings analogous and concluded that the contribution claim was extinguished as

a matter of law due to the good faith settlement reached with Mr. Smith. Finally,

Modular argued that it was improper for the circuit court to include Mr. Smith on the

verdict form for purposes of apportionment of fault since he was not a party to the

litigation, as required under West Virginia Code § 55-7-24. The circuit court concluded

that because Mr. Smith testified, the jury had the necessary evidence to apportion fault to

him and that, even if erroneous, it was harmless error. As a result of the foregoing, the

circuit court denied Modular’s motion and this appeal followed.

II. STANDARD OF REVIEW

This case presents itself upon the circuit court’s denial of Modular’s motion

for judgment as a matter of law, or, in the alternative for a new trial. With respect to

Modular’s motion for judgment as a matter of law, this Court has held:

The appellate standard of review for an order granting or

denying a renewed motion for a judgment as a matter of law

after trial pursuant to Rule 50(b) of the West Virginia Rules of

Civil Procedure [1998] is de novo.

When this Court reviews a trial court’s order granting or

denying a renewed motion for judgment as a matter of law

after trial under Rule 50(b) of the West Virginia Rules of Civil

Procedure [1998], it is not the task of this Court to review the

facts to determine how it would have ruled on the evidence

presented. Instead, its task is to determine whether the

5

evidence was such that a reasonable trier of fact might have

reached the decision below. Thus, when considering a ruling

on a renewed motion for judgment as a matter of law after

trial, the evidence must be viewed in the light most favorable

to the nonmoving party.

Syl Pts. 1 and 2, Fredeking v. Tyler, 224 W.Va. 1, 680 S.E.2d 16 (2009). As pertains to

this Court’s review of the sufficiency of the evidence,

the court should: (1) consider the evidence most favorable to

the prevailing party; (2) assume that all conflicts in the

evidence were resolved by the jury in favor of the prevailing

party; (3) assume as proved all facts which the prevailing

party's evidence tends to prove; and (4) give to the prevailing

party the benefit of all favorable inferences which reasonably

may be drawn from the facts proved.

Syl. Pt. 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983).

Insofar as Modular’s motion for a new trial is concerned, this Court reviews

“the rulings of the circuit court concerning a new trial and its conclusion as to the

existence of reversible error under an abuse of discretion standard, and we review the

circuit court's underlying factual findings under a clearly erroneous standard. Questions

of law are subject to a de novo review.” Tennant v. Marion Health Care Foundation,

Inc., 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995). “Although the ruling of a trial

court in granting or denying a motion for a new trial is entitled to great respect and

weight, the trial court's ruling will be reversed on appeal when it is clear that the trial

court has acted under some misapprehension of the law or the evidence.” Syl. Pt. 4,

Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). With these

standards in mind, we proceed to Modular’s assignments of error.

6

III. DISCUSSION

A. Inconsistency of Verdict

Modular’s first assignment of error asserts that the jury’s finding that

Poerio was negligent, but did not breach the lease agreement is inconsistent. Modular

argues that the only evidence of negligence against Poerio adduced at trial was that it

failed to provide free and clear access to the storage container, which would be a breach

of the lease. Modular argues that if the jury found that Poerio was negligent, it

necessarily must have also violated the lease agreement. Poerio denies that the access

issue was the only accusation leveled at trial, and maintains that Modular tried to “paint it

in a bad light” claiming that Poerio did not offer specific directions for access to the

storage unit or provide flaggers to assist Mr. McLaughlin.

This Court has held that “[w]hen jury verdicts answering several questions

have no logical internal consistency and do not comport with instructions, they will be

reversed and the cause remanded for a new trial.” Syl. Pt. 1, Reynolds v. Pardee &

Curtin Lumber Co., 172 W. Va. 804, 310 S.E.2d 870 (1983). In determining whether

jury verdicts are inconsistent, the Court has observed that with respect to inconsistent

verdict, “such inconsistency must appear after excluding every reasonable conclusion that

would authorize the verdict.” Prager v. City of Wheeling, 91 W. Va. 597, 599, 114 S.E.

155, 156 (1922).

7

We find this assignment of error easily resolved. Critically, there was

conflicting testimony as to whether the main entrance to the school was blocked or not.

The jury could have concluded that it was not blocked, thereby providing free and clear

access to the storage unit, irrespective of the obstructions to the construction entrance Mr.

McLaughlin chose to utilize. Therefore, the lease agreement would not have been

breached by Poerio. However, in spite of this finding, the jury could have likewise been

persuaded by Modular’s insinuation throughout the testimony of various witnesses that

Poerio improperly failed to advise Modular of the location and proper means of access

for the storage container when Modular called prior to pick-up to ensure the storage

container was empty. The jury could have also been persuaded by Modular’s suggestion

that Poerio employees should have assisted in flagging for Mr. McLaughlin when he

stopped the Modular truck partially in the roadway. Moreover, there was much

discussion about the location to which Poerio moved the storage unit, which location,

along with the white work van caused the obstruction of the construction entrance where

Mr. McLaughlin attempted to enter. Accordingly, the jury could have concluded that

there existed a free and clear access to the storage unit but that, in spite of that access,

Modular utilized the other entrance which Poerio negligently allowed to become blocked

and/or failed to warn or assist him in that regard.4

4

Although not argued by Poerio, as additional grounds for finding against Modular

on this assignment of error, we note that counsel for Modular made no objection to the

(continued . . .)

8

We therefore find that there are a variety of “reasonable conclusions” which

would authorize the verdict and that the circuit did not err in refusing to grant a new trial

on this basis.

B. Extinguishment of Contribution Claim

Modular’s next assignment of error presents an issue of first impression.

Modular argues that the circuit court erred in concluding that its settlement with Mr.

Smith served to extinguish Modular’s contribution claim against Poerio where Modular

obtained a release for Poerio in such settlement.5

inconsistent verdict at the time the verdict was returned and before the jury was

discharged. After the circuit court read the verdict, it inquired of counsel:

The Court: Does either party wish to address any motions with regard to

any irregularities with regard to the form?

Mr. Kesner: No, Your Honor.

The Court has held that “[a]bsent extenuating circumstances, the failure to timely

object to a defect or irregularity in the verdict form when the jury returns the verdict and

prior to the jury’s discharge, constitutes a waiver of the defect or irregularity in the

verdict form.” Syl. Pt. 2, Combs v. Hahn, 205 W. Va. 102, 516 S.E.2d 506 (1999).

Moreover, “[t]he right [to clarification of an irregular verdict] after waiver cannot be

reclaimed and revived by a motion for a new trial.” Id. at 107, 516 S.E.2d at 511.

5

As noted above, the circuit court initially ruled in Modular’s favor pre-trial in

allowing the contribution claim to be presented to the jury. Post-judgment and

particularly during post-trial motions, however, the circuit court ostensibly revisited the

propriety of the claim and reversed course, finding the contribution claim extinguished as

a matter of law. See n. 3, supra.

9

“Once comparative fault in regard to contribution is recognized, recovery

can be had by one joint tortfeasor against another joint tortfeasor inter se regardless of

their respective degree of fault so long as the one has paid more than his pro tanto share

to the plaintiff.” Syl. Pt. 4, Sitzes v. Anchor Motor Freight, Inc., 169 W. Va. 698, 289

S.E.2d 679 (1982). It is well-established that a settlement with a plaintiff by a joint

tortfeasor extinguishes any claim for contribution against that settling tortfeasor. In

Syllabus Point 6 of Bd of Educ. of McDowell Cnty. v. Zando, Martin & Milstead, Inc.,

182 W. Va. 597, 390 S.E.2d 796 (1990), the Court held that “[a] party in a civil action

who has made a good faith settlement with the plaintiff prior to a judicial determination

of liability is relieved from any liability for contribution.” Moreover, the Court has

historically found the opposite to also be true, i.e. the settling tortfeasor cannot pursue

contribution against a non-settling tortfeasor. See Charleston Area Med. Ctr., Inc. v.

Parke-Davis, 217 W. Va. 15, 614 S.E.2d 15 (2005) (refusing to allow settling tortfeasor

to pursue contribution for pre-suit settlement with plaintiff); Jennings, 224 W. Va. 636,

687 S.E.2d 574 (refusing to allow settling tortfeasor to pursue contribution after

settlement with tortfeasor purporting to represent tortious acts of joint tortfeasor).

However, critically, in each of these cases, the settling tortfeasor’s settlement with

plaintiff released only the settling tortfeasor. See Parke-Davis, 217 W. Va. at 23, n.11,

614 S.E.2d at 23, n.11 (observing that “CAMC was the only party released from

liability”); Jennings, 224 W. Va. at 639, 687 S.E.2d at 577 (“Ms. Jennings settled and

released all her claims against Farmers Mutual [.]”).

10

The question then is whether the fact that Modular obtained a release for

Poerio—a party Mr. Smith did not sue and against which Mr. Smith’s statute of

limitations had run at the time of trial—preserves Modular’s claim for contribution

against Poerio. Although this issue has not been squarely addressed by this Court, the

Parke-Davis Court obliquely noted that, as in West Virginia, states which have adopted

the Uniform Contribution Among Tortfeasors Act (“UCATA”) typically find that a

settlement by a joint tortfeasor terminates its right of contribution, “barring a release

obtained by the settling tortfeasor that expressly extinguishes any liability against all

tortfeasors.” 217 W. Va. at 23, n.11, 614 S.E.2d at 23, n.11 (emphasis added); see also

Mackey v. Irisari, 191 W. Va. 355, 361 n.4, 445 S.E.2d 742, 748 n.4 (1994) (recognizing

rule in UCATA states that where settling defendant settles only his share, contribution

does not lie, but contribution may be had from defendant whose liability was

extinguished by joint tortfeasor’s settlement).

Urging the Court to adopt this rule, Modular argues that if it were not

permitted to preserve its claim for contribution by obtaining a release for Poerio, in a case

where it felt strongly that Poerio was the primary wrongdoer, it would have no incentive

to settle with the badly injured plaintiff. The only way then to preserve its contribution

claim would be to refuse to settle with plaintiff and proceed to trial. Modular insists that

such a result would run contrary to our strong public policy favoring out-of-court

resolution of disputes: “The law favors and encourages the resolution of controversies by

contracts of compromise and settlement rather than by litigation[.]” Syl. Pt. 1, in part,

11

Sanders v. Roselawn Mem’l Gardens, 152 W. Va. 91 159 S.E.2d 784 (1968); see also

Zando, 182 W. Va. at 604, 390 S.E.2d at 803 (same).

Poerio, on the other hand, contends that Modular’s unilateral action of

settling with Mr. Smith and obtaining a release on Poerio’s behalf, all without its

involvement, should not make it a hostage to Modular’s settlement. Poerio claims that

Modular “willingly and voluntarily” “bought protection from a potentially large

verdict[.]” Poerio argues heavily that the Jennings case cited by the circuit court is

controlling and, without specifically citing to such authority, appears to argue that absent

a “forcible” common obligation by judgment, no right of contribution lies. See Syl. Pt. 4,

in part, Sydenstricker v. Unipunch Products, Inc., 169 W. Va. 440, 288 S.E.2d 511 (1982)

(“The right to contribution arises when persons having a common obligation, either in

contract or tort, are sued on that obligation and one party is forced to pay more than his

pro tanto share of the obligation.”); see also Parke-Davis, 217 W. Va. at 23, 614 S.E.2d

at 23 (“Given that CAMC acted of its own salutary accord in deciding to settle the claims

raised by the child’s estate, it cannot claim to have be ‘forced to pay more than [its] pro

tanto share.’”).6

6

Poerio also argues that if Modular wanted to cap its liability while preserving its

contribution claim, it could have entered a “Mary Carter” agreement with plaintiff. A

“Mary Carter” agreement is one where plaintiff enters a settlement with a defendant who

guarantees the plaintiff a certain recovery regardless of outcome. This type of agreement

tends to “realign the loyalties of the parties and change their trial tactics” and is not

particularly favored. Reager v. Anderson, 179 W. Va. 691, 702, 371 S.E.2d 619, 630

(continued . . .)

12

To examine this question further, the rationale behind the extinguishment

of contribution claims upon settlement must be examined. The underlying reasoning

behind the preclusion of a contribution claim by a settling tortfeasor against a non-

settling tortfeasor is that the non-settling tortfeasor remains exposed to the plaintiff and

therefore will theoretically pay his share of liability, if any, directly to the plaintiff.

Similarly, “[t]he settling defendant is, in effect, paying a share of liability on the verdict.”

Zando, 182 W. Va. at 605, 390 S.E.2d at 804. To allow the settling tortfeasor to pursue

contribution while the non-settling tortfeasor remains exposed to the plaintiff would

result in the non-settling tortfeasor being doubly exposed for his negligence. See Estate

of Dresser v. Maine Med. Ctr., 960 A.2d 1205, 1209 (Me. 2008) (Mead, J., dissenting)

(“The necessity of extinguishing liability of non-settling tortfeasors is clear: failure to do

so could expose a non-settling tortfeasor to liability on both the underlying claim and the

contribution claim.”) However, where a joint tortfeasor purchases or otherwise obtains a

release for the non-settling tortfeasor, the non-settling tortfeasor is obviously no longer

(1988) see also Mackey, 191 W. Va. at 363, 445 S.E.2d at 750 (1994) (“This case points

out the problems with a ‘Mary Carter” settlement agreement.’”).

Regardless, however, of the availability and/or relative merits of a Mary Carter

agreement, the fact of the matter is that such an agreement was not reached in this case.

Therefore, its potential availability is irrelevant to the issues presented. More to the

point, however, Modular had little chance of getting Smith to make a Mary Carter

agreement in this case because that would require Smith to proceed to trial for the sole

purpose of making a case against Poerio—a party it did not even feel necessary to sue.

Smith would have no incentive whatsoever to agree to remain in the case only to help

Modular pursue its contribution claim.

13

exposed to plaintiff. 7 In this case, Modular made the strategic decision to settle with a

badly injured plaintiff, Mr. Smith, to remove that potentially inflammatory aspect of the

case from the jury in an effort to control damages. Mr. Smith voluntarily gave a release

for both Modular and Poerio for the settlement, thereby extinguishing Poerio’s potential

exposure to Mr. Smith. This critical distinction makes Jennings and our other caselaw

involving only a release of the settling tortfeasor of little utility.8

7

The fact that Smith did not sue Poerio directly and the statute of limitations had

run as against Poerio has been found by an “overwhelming majority” of other courts to be

of no moment to this analysis. Smith v. Jackson, 721 P.2d 508, 510 (Wash. 1986). The

rationale is typically that the contribution plaintiff should not be hamstrung by the

underlying plaintiff’s lack of diligence: “[P]laintiff’s claim should not be compromised

merely because the underlying claimant failed to comply with a statute of limitations as

to the contribution defendant.” MetroHealth Med. Ctr. v. Hoffmann-LaRoche, Inc., 685

N.E.2d 529, 533 (Ohio 1997). The MetroHealth court further concluded that the

statutory requirement that a contribution defendant be “‘liable in tort’ means no more

than that the contribution defendant acted tortiously and thereby caused damages.’” Id. at

532. See also Martin v. CSX Transportation, Inc., 617 F. Supp.2d 662, 667 (N.D. Ohio

2009) (finding that “the expiration of the limitations period on the underlying tort claim

does not serve to extinguish liability in a subsequent contribution action.”); Doyle v.

Rhodes, 461 N.E.2d 382, 388 (Ill. 1984) (finding that whether a party is “subject to

liability” to the plaintiff for purposes of contribution is determined at the time of the

injury, not when the matter proceeds to trial); G & P Trucking v. Parks Auto Sales Serv.

& Salvage, 591 S.E.2d 42, 45 (S.C. 2003) (finding that “the running of the statute of

limitations in and of itself cannot operate to ‘extinguish’ a tortfeasor’s liability” because

“it is subject to certain counter-assertions, such as waiver, tolling, and estoppel.”); cf.

Zando, 182 W. Va. at 603, 390 S.E.2d at 802 (“The touchstone of the right of inchoate

contribution is this inquiry: Did the party against whom contribution is sought breach a

duty to the plaintiff which caused or contributed to the plaintiff’s damages?”)

8

Moreover, none of the disqualifying factors for the contribution claim in Parke-

Davis are present here. The Parke-Davis Court was critical of the absence of an original

complaint by the injured plaintiff and proper joinder of all parties in a unitary action. The

case sub judice proceeded exactly as contemplated for the bringing of a contribution

(continued . . .)

14

The UCATA adopted in many states expressly provides: “A tortfeasor who

enters into a settlement with a claimant is not entitled to recover contribution from

another tortfeasor whose liability for the injury or wrongful death is not extinguished by

the settlement[.]” § 1(d) (emphasis added). The comments to the Act further explain that

The policy of the Act is to encourage rather than discourage

settlements. The tortfeasor who settles removes himself

entirely from the case so far as contribution is concerned if he

is able and chooses to buy his peace for less than the entire

liability. If he discharges the entire obligation it is only fair to

give him contribution from those whose liability he has

discharged.

(emphasis added); see also 18 Am. Jur.2d Contribution § 70 (1985) (“A joint tortfeasor,

who enters into a settlement of the common liability with an injured person, is entitled to

recover contribution from another tortfeasor, whose liability to the injured person was

extinguished by that settlement” barring a statute providing otherwise); Restatement

(Third) of Torts: Apportionment of Liability § 23 (“When two or more persons are or

may be liable for the same harm and one of them discharges the liability of another by

settlement or discharge of judgment, the person discharging the liability is entitled to

recover contribution from the other[.]”) Although frequently governed by statute, the

claim: “The procedural mechanism for invoking [a] non-statutory right of contribution . .

. is by means of third-party joinder . . . . [W]hether the inchoate right of contribution can

be asserted in a given case will generally be determined based upon compliance with the

procedural requirements necessary to invoke such right.” Parke-Davis, 217 W. Va. at 20,

614 S.E.2d at 20. The only procedural irregularity was created by the subsequent

settlement of Mr. Smith.

15

overwhelming majority of states likewise permit contribution claims where one tortfeasor

9

extinguishes the liability of another joint tortfeasor.

Certainly, this Court is no stranger to the policy underlying this rule and has

in fact stated “[i]t would seem proper social policy that a wrongdoer should not escape

9

See In re Rural/Metro Corp. Stockholders Litig., 102 A.3d 205, 223 (Del. Ch.

2014) (recognizing ability of “one or more joint tortfeasors to settle on behalf of

themselves and another joint tortfeasor and then pursue that joint tortfeasor for its share

of the settlement payment”) Robarts v. Diaco, 581 So.2d 911, 915 (Fl. Dist. Ct. App.

1991) (“for such a right of contribution to exist, a nonsettling joint tortfeasor must also

have been released from all liability to the injured party for the tort.”); Gump v. Wal-Mart

Stores, Inc., 5 P.3d 407 (Haw. 2000) (recognizing necessity of release of joint tortfeasor

against whom contribution is sought); Brockman Mobile Home Sales v. Lee, 567 P.2d

1281, 1283 (Idaho 1977) (“A joint tortfeasor who enters into a settlement with the injured

person is entitled to recover contribution from another joint tortfeasor whose liability to

the injured person is extinguished by the settlement.”); State Farm Fire and Cas. Co. v.

Jones, 768 N.E.2d 805, 806 (Ill. App. Ct. 2002) (“[A] joint tortfeasor who wishes to settle

with a claimant and intends to seek contribution from another tortfeasor must secure the

other tortfeasor's release in order to preserve its right to contribution.”); Union Elec. Co.

v. Metropolitan St. Louis Sewer Dist., 258 S.W.3d 48, 55 (Mo. 2008) (“[W]hen the party

seeking contribution has settled with the original plaintiff, the settling party has a right of

contribution “‘only . . . if the liability of the person against whom contribution is sought

has been extinguished[.]”); Estate of Powell ex rel. Powell v. Montange, 765 N.W.2d

496, 504 (Neb. 2009) (“[A] right of contribution among joint tort-feasors is not

established if the tort-feasor seeking contribution extinguishes only his or her liability and

does not extinguish the liability of the other joint tort-feasors from whom contribution is

sought.”); The Doctors Co. v. Vincent, 98 P.3d 681, 683 (Nev. 2004) (“[A] joint

tortfeasor seeking to perfect a contribution claim in the context of a settlement must first

extinguish the liabilities of the other joint tortfeasors against whom contribution recovery

is sought.”); Husni v. Meden, 640 N.E.2d 1207 (Ohio Ct. App. 1994) (barring

contribution claim where release did not extinguish joint tortfeasor’s liability); Schuman

v. Vitale, 602 A.2d 390 (Pa. 1992) (same); G & P Trucking v. Parks Auto Sales Service &

Salvage, Inc., 591 S.E.2d 42 (S.C. Ct. App. 2003) (same); Kirk v. Moe, 789 P.2d 84

(Wash. 1990) (recognizing right of contribution against joint tortfeasor where release is

obtained on his behalf).

16

his liability on the fortuitous event that another paid the entire joint judgment.” Sitzes,

169 W. Va. at 708, 289 S.E.2d at 686. Moreover, we agree with the Supreme Court of

Nebraska’s statement that

[u]nder equitable principles, the discharge of such liability is

a benefit to the tort-feasor from whom contribution is sought.

However, without such discharge, the other tort-feasor may

remain liable to the injured party and the tort-feasor seeking

contribution will not have fixed the amount of liability for

which contribution is sought.

Estate of Powell, 765 N.W.2d at 504. The Colorado Court of Appeals likewise found

that “to prohibit the [settling tortfeasor who obtains a release for a joint tortfeasor] from

getting contribution would make for an inequitable distribution of the loss, and would

result in the [non-settling, released tortfeasor] being unjustly enriched through the

[settling tortfeasor’s] complete payment of a joint obligation.” Miller v. Jarrell, 684 P.2d

954, 957 (Colo. Ct. App. 1984). However, “[a] settlement by one tort-feasor that does

not extinguish the common liability does not confer a benefit upon which a claim for

contribution may be asserted.” Estate of Powell, 765 N.W.2d at 504. 10 Finally, as

Modular correctly notes, were this Court not to adopt this rule, it would discourage

similarly situated defendants from settling with injured plaintiffs and sparing them the

burdens of trial; to preserve their contribution claim, they would have to refuse to settle

10

In fact, this concept was articulated in Parke-Davis: “[W]hile CAMC sought to

establish a legal obligation jointly owed by it and Defendants through the underlying

cause of action, the predicate common obligation owed to the injured party was not

established through that proceeding.” 217 W. Va. 23, 614 S.E.2d at 23. In the case sub

judice, the common obligation was created by virtue of the settlement and release on

behalf of both Modular and Poerio.

17

and proceed to trial with the plaintiff in tow all for the purpose of compelling a joint

tortfeasor to pay its share.

We therefore hold that where a tortfeasor settles with an injured plaintiff

and obtains a release for a joint tortfeasor, such release preserves the settling tortfeasor’s

right of contribution against the released joint tortfeasor. Accordingly, we find that the

circuit court erred when it concluded that Modular’s claim of contribution was

extinguished as a matter of law by Modular’s settlement with Mr. Smith.

C. Apportionment of Fault to the Injured Plaintiff, Mr. Smith

Having determined that the contribution claim was not extinguished by

Modular’s settlement with Mr. Smith, Modular’s final assignment of error asserts that the

circuit court erred in permitting Mr. Smith to be placed on the verdict form for purposes

of apportionment of fault. Modular argues that this Court has held that “empty chair”

arguments are impermissible and that West Virginia Code § 55-7-24, only permits the

jury to determine proportionate fault of “each of the parties in the litigation at the time the

verdict is rendered[.]” Since Mr. Smith had settled and was not a party at the time of

trial, Modular argues that his comparative fault should not have been assessed.

Poerio, on the other hand, argues that West Virginia Code § 55-7-24 merely

governs joint and several liability and is therefore inapplicable as this was simply a

contribution claim, i.e., there was no joint and several liability to be rendered since Mr.

18

Smith had settled. Poerio further argues that Mr. Smith was called as a witness by

Modular and his involvement in the accident was fully presented through his testimony

and the testimony of a Poerio employee, who saw Mr. Smith looking at the job site just

before the accident.11

Contrary to what the parties appear to believe, there is no per se ban on

“empty chair” arguments in West Virginia. This notion first appeared in Groves v.

Compton, 167 W. Va. 873, 879, 280 S.E.2d 708, 712 (1981), wherein the Court noted in

dicta that “it is improper for counsel to argue to the jury . . . that an absent party is solely

responsible for the accident since the evidence surrounding such absent party’s liability

has not been fully developed.” (emphasis added). However, in the following term of

Court, we held that “[i]n order to obtain a proper assessment of the total amount of the

plaintiff’s contributory negligence under our comparative negligence rule, it must be

ascertained in relation to all of the parties whose negligence contributed to the accident,

and not merely those defendants involved in the litigation.” Syl. Pt. 3, Bowman v.

Barnes, 168 W. Va. 111, 282 S.E.2d 613 (1981).

The spectre of the “empty chair” ban was raised again in 2001, when this

Court reiterated the general impropriety of arguing the fault of absent parties, with a

strong, but often overlooked, caveat. In Syllabus Point 2 of Doe v. Wal-Mart Stores, Inc.,

11

Mr. Smith suffered a head injury and therefore had no memory of the subject

accident. He put up little resistance during his testimony to the idea that he was

distracted at the time of the collision.

19

210 W. Va. 664, 558 S.E.2d 663 (2001), the Court held that “[i]t is improper for counsel

to make arguments to the jury regarding party’s omission from a lawsuit or suggesting

that the absent party is solely responsible for the plaintiff’s injury where the evidence

establishing the absent party’s liability has not been fully developed.” (emphasis added).

There has been little discussion of what level of evidentiary development is necessary to

invoke this exception.

However, this Court subsequently suggested that where issues of plaintiff’s

comparative negligence and joint tortfeasors converge, the jury should assess the fault of

all parties. In Rowe v. Sisters of the Pallottine Missionary Soc’y, 211 W. Va. 16, 560

S.E.2d 491 (2001), the sole remaining defendant in a medical malpractice trial asserted

that it was error for the trial court to refuse to allow plaintiff and a settling defendant to

be placed on the verdict form for apportionment of fault. The Rowe Court first noted that

Bowman only requires assessment of the fault of all parties where plaintiff is alleged to

be contributorily negligent; however, the Court found that there was no viable

contributory negligence claim in Rowe: “[W]ithout some proof of negligence by the

plaintiff, there is no requirement that the jury be instructed to ascertain or apportion fault

between the defendant and a non-party tortfeasor.” Id. at 24, 560 S.E.2d at 499

(emphasis added). With respect to the non-party tortfeasor, the Court observed that there

were no contribution claims, 211 W. Va. at 24 n.5, 560 S.E.2d at 499 n.5, and therefore

any apportionment of fault was irrelevant. Id. at 25, 560 S.E.2d 500. By contrast, in the

instant case, the plaintiff is the non-party and there is ample evidence of his comparative

20

negligence. Moreover, since Smith settled just prior to trial, there can be little question

that “evidence establishing the absent party’s liability has [] been fully developed” in the

litigation and presented at trial as required by Doe.

In addition to caselaw supporting the placement of Mr. Smith on the verdict

form for the apportionment of fault, simple fairness would seem to require it under these

circumstances. Poerio refused to settle this matter as it was of the opinion that Mr. Smith

was fifty percent or greater at fault, which would bar his recovery. Modular, preferring

not to take such a risk in front of a jury, settled with Mr. Smith and obtained a release for

Poerio—acts over which Poerio had no control. If Poerio were not permitted to have the

jury assess Mr. Smith’s fault, it creates a false presumption that Mr. Smith had a viable,

collectible claim and was entitled to recover against one or both defendants. This fiction

necessarily connotes that one or both defendants were more than fifty percent at fault and

the jury must simply decide how much each defendant should pay. It is patently

inequitable to hamstring Poerio with the settlement and release obtained by Modular, yet

strip it of its ability to advance its primary defense to the case—the recovery-barring fault

of Mr. Smith. When Modular paid to obtain a release for both itself and Poerio, it ran the

risk that a jury would agree that Mr. Smith was not entitled to recover because his

negligence totaled fifty percent or greater.

Similarly motivated by a balancing of the equities, this Court has recently

endorsed the placement of an immune defendant on the verdict form as required by

21

“equitable principles of fairness, the concepts underlying the doctrine of comparative

negligence, and this Court’s ruling in Bowman[.]” Landis v. Hearthmark, LLC, 232 W.

Va. 64, 75, 750 S.E.2d 280, 291 (2013). In Landis, this Court held that in a product

liability action, an allegedly negligent parent could be included as a third-party defendant

even though the parental immunity doctrine bars a claim of contribution against the

parent. The court noted that Bowman’s admonition that all parties’ fault must be assessed

was not limited to parties against whom there was a claim of contribution. Id. at 74, 750

S.E.2d at 290.

Finally, as to Modular’s argument that West Virginia Code § 55-7-24

governs this scenario, we disagree. West Virginia Code § 55-7-24 is entitled

“Apportionment of damages” and, simply put, deals with joint and several liability of

defendants (emphasis added). As we observed in Sitzes, “the concept of joint and several

liability after judgment relates primarily to the liability of all of the joint tortfeasors to the

plaintiff.” 169 W.Va. at 706, 289 S.E.2d at 685 (emphasis added). “The basic purpose of

the joint and several liability rule is to permit the injured plaintiff to select and collect the

full amount of his damages against one or more joint tortfeasors.” Id. at 707; 289 S.E.2d

at 685 (emphasis added). Accordingly, the practical effect of West Virginia Code § 55-7­

24 concerns the collectability of a judgment by a plaintiff.

Modular argues that the requirement to determine “proportionate fault of

each of the parties in the litigation at the time the verdict is rendered” contained in West

22

Virginia Code § 55-7-24 is evidence that consideration of the fault of non-parties is per

se impermissible in West Virginia. However, this mere reference in our joint and several

liability statute does not evince a Legislative intent that West Virginia Code § 55-7-24

serve as an omnibus statute exclusively governing the apportionment of comparative fault

and the consideration of fault of nonparties.12 Both of these concepts are a creation of

and governed by the common law. See Bradley v. Appalachian Power Co., 163 W.Va.

332, 256 S.E.2d 879 (1979) (creating West Virginia’s modified comparative fault

standard); Bowman, 168 W. Va. 111, 282 S.E.2d 613 (determining absent party’s role in

comparative negligence). “‘The common law is not to be construed as altered or changed

by statute, unless legislative intent to do so be plainly manifested.’ Shifflette v. Lilly, 130

W.Va. 297, [43 S.E.2d 289 1947].” Syl. Pt. 4, Seagraves v. Legg, 147 W.Va. 331, 127

S.E.2d 605 (1962). “If the Legislature intends to alter or supersede the common law, it

must do so clearly and without equivocation.” State ex rel. Van Nguyen v. Berger, 199

W.Va. 71, 75, 483 S.E.2d 71, 75 (1996). With its 2005 enactment, West Virginia Code §

55-7-24 simply does not, nor does it purport to, alter our common law regarding the

assessment of fault against non-parties which pre-existed the statute for twenty-four

years. See also Landis, 232 W. Va. at 74, 750 S.E.2d at 290 (finding that West Virginia

Code § 55-7-24 does not preclude consideration of immune defendant’s fault).

12

In contrast, H. B. 2002, which becomes effective on May 25, 2015, repeals both

West Virginia Code §§ 55-7-24 and 55-7-13 and enacts a series of new statutes which in

fact do purport to fully occupy the field of comparative fault and the consideration of “the

fault of parties and nonparties to a civil action[.]” H. B. 2002, 2015 Leg. 82nd Sess. (W.

Va. 2015) (to be codified at West Virginia Code §§ 55-8-13a through 13d).

23

In more practical terms, it is clear that the use of the particular language in

West Virginia Code § 55-7-24 is simply necessary to properly effectuate the calculations

and apportionments governed by the statute. In order to properly calculate a plaintiff’s

damages and therefore the amounts owed by the respective tortfeasors, it is in fact

necessary to first “determine . . . the total amount of damages sustained by the claimant”

and then determine the “proportionate fault of each of the parties in the litigation at the

time the verdict is rendered” to determine 1) the amount to which plaintiff is entitled; and

2) which tortfeasors are severally or jointly and severally liable, such that plaintiff may

determine from whom his verdict is collectible. With Mr. Smith having settled,

apportionment of fault for purposes of the joint and several statute is pointless; Smith is

not seeking to “recover” from the joint tortfeasors.

We therefore find that the circuit court committed no error in permitting

Mr. Smith to be placed on the verdict form for purpose of fault apportionment. Inasmuch

as the jury returned a verdict of sixty percent negligence as to Mr. Smith, Poerio is

entitled to judgment in its favor as to Modular’s contribution claim.13

13

Modular also argues that because both it and Poerio were found to be twenty

percent at fault and therefore in equal fault, Poerio must pay fifty percent of the

settlement to Modular. This argument not only flies in the face of our conclusion that

Mr. Smith’s negligence was properly assessed by the jury, but simply does not reflect a

realistic representation of the jury’s conclusions. The jury did not conclude that Poerio

bears fifty percent responsibility for damages to which Mr. Smith was entitled; rather, it

found Poerio twenty percent at fault for a claim which is barred by operation of law due

to Mr. Smith’s percentage of comparative negligence.

24

IV. CONCLUSION

For the reasons set forth hereinabove, we affirm the December 12, 2013,

order of the circuit court.

Affirmed.

25