Plumb v. Fourth Judicial District Court

No. 96-023

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

ROBERTA PLUMB and MARTIN PLUMB,

Petitioners,

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THE FOURTH JUDICIAL DISTRICT COURT, h

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MISSOULA COUNTY, MONTANA, ....

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Respondent.

ORIGINAL PROCEEDING

COUNSEL OF RECORD:

For Petitioners:

Gregory 0. Morgan (argued) and Robert Cameron

(argued), Gregory 0.Morgan, P.C.,Bozeman, Montana

For Respondent:

Dan L. Spoon, Reep, Spoon & Gordon, Missoula,

Montana; and John Alke (argued), Hughes, Kellner,

Sullivan & Alke, Helena, Montana

(for Defendant Southgate Mall)

For Amici Curiae:

Richard F. Cebull (argued) and Tiffany B.

Lonnevik, Brown, Gerbase, Cebull, Fulton,

Harman & Ross, Billings, Montana

(for Dr. Timothy Adams)

J. Daniel Hoven, Browning, Kaleczyc,

Berry & Hoven, Helena, Montana

(for Montana Municipal Insurance Authority)

Jerome T. Loendorf, Harrison, Loendorf,

Poston & Duncan, Helena, Montana

(for Montana Medical Association)

R. Stephen Browning, Browning, Kaleczyc,

Berry & Hoven, Helena, Montana

(for Montana Hospital Association)

Randy J. Cox, Boone, Karlberg & Haddon,

Missoula, Montana; and T. Thomas Singer, Moulton,

Bellingham, Longo & Mather, Billings, Montana

(for Montana Defense Trial Lawyers, Inc.)

Robert L. Sterup, Dorsey & Whitney,

Billings, Montana

(for CBI Services, Inc.)

William A. Rossbach and Elizabeth A. Brennan,

Rossbach & Whiston, Missoula, Montana

(for Montana Trial Lawyers Association)

Heard: May 30, 1996

Submitted: May 31, 1996

Decided: November 2 2 , 1996

Filed:

Justice Terry N. Trieweiler delivered the opinion of the Court.

I have no doubt that if the records of the time of

that ancient and apparently earliest of lawgivers,

Hammurabi, could be completely restored, we should learn

that in the third millennium before Christ men were

complaining about the inefficiency of legal procedure,

and I fancy that if any of you are destined in the year

7000 A.D. to revisit the glimpses of the moon to examine

and write a monograph for the celestial choirs upon the

condition of human law courts, you will be obliged to

report to some Seraphic Commission that mankind still

exhibits the same discontentment with its methods of

adjusting human differences that you know today. I must

therefore ask you to believe that in the course of a half

hour I do not hope to lay my finger on the cure for a

condition which is probably so inherent in our human

imperfections as to be persistent as long as the need for

litigation itself endures. We shall, I fear, be scarcely

satisfied with our settlement of disputes until we have

so purged and purified our natures as to bring down the

dove of domestic peace to be a permanent sojourner amid

the haunts of homo sapiens.

United States District Judge Learned Hand, The Deficiencies of

Trials to Reach the Heart of the Matter, a 1921 lecture before The

Association of the Bar of the City of New York, reprintedin 31 Int11

Socty of Barristers Q. 309 ( 1 9 9 6 ) .

Nowhere is our society's "discontentment with [our] methods of

adjusting human differences" more apparent than in the periodic

enactment, interpretation, and amendment of § 27-1-703, MCA, which

relates to apportionment of liability for damages. What follows is

this Court's most recent effort to blend due consideration for the

Legislature's responsibility to establish social policy with the

judiciary's responsibility to assure that those efforts are pursued

within constitutional parameters.

The plaintiffs, Roberta Plumb and Martin Plumb, brought this

action in the District Court for the Fourth Judicial District in

Missoula County to recover damages from the defendant, Southgate

Mall Associates, for injuries allegedly sustained by Roberta when

she slipped and fell while on the Mall's premises due to the Mall's

alleged negligent maintenance of those premises. Over plaintiffs'

objection, the Mall was allowed to file an amended answer in which

it alleged that plaintiffs' damages were caused or contributed to

by the negligent treatment and care provided by Roberta's treating

physician, and that its liability should be reduced accordingly

based on 5 27-1-703(6), MCA (1995). The Plumbs petitioned this

Court for supervisory control based on our decision in Newville v. State

DepartmentofFamilyServices (1994), 267 Mont. 237, 883 P.2d 793. We

granted supervisory control, and now, after consideration of the

arguments by both parties and numerous nmici curiae, we reverse the

order of the District Court which allowed the Mall to assert as an

affirmative defense that its liability should be diminished due to

the fault of an unnamed third party.

We have been asked to decide the following issues:

1. Are the facts and issues presented in this case

appropriate for resolution by supervisory control?

2. Does the opportunity for a defendant to reduce its

liability by asserting as an affirmative defense that plaintiffs'

damages have been caused or contributed to by unnamed third parties

pursuant to § 27-1-703(61, MCA (l995), violate principles of

substantive due process as guaranteed by the federal and state

constitutions?

PROCEDURAL BACKGROUND

In their complaint, Roberta and Martin Plumb allege that on

September 13, 1992, Roberta entered the Southgate Mall in Missoula,

and just inside the entrance, slipped and fell after stepping on a

film of water which had not been visible on the highly polished

floor. The Plumbs allege that Roberta's fall was caused by the

Mall's negligent failure to keep its premises in a reasonably safe

condition and its negligent failure to warn her that the floor was

dangerously slippery. They allege that as a result of her fall,

Roberta injured her lower leg, and that because of that injury, she

has undergone a series of complicated surgical procedures and other

complications, following which her ability to walk is substantially

impaired. Both Roberta and Martin sought damages from the Mall for

their losses related to Roberta's injuries.

For its answer, the Mall admitted that it owned and controlled

the property in question, but denied the other material allegations

of the complaint and asserted various affirmative defenses.

Deadlines for the completion of discovery and amendments to

pleadings were established. However, four and one-half months

after its answer was filed, the Mall moved to amend the scheduling

order, based on Senate Bill 212 which amended § 27-1-703, MCA

,

(1987) by permitting the assertion of a "nonparty defense," and

providing certain procedural requirements in apparent response to

our decision in Newville. That Bill was signed by the Governor on

April 5, 1995, and became effective on that date. By its terms,

the Bill was applicable to all claims which had not yet been

reduced to final judgment.

The Mall's motion to amend the scheduling order was granted.

It then filed a motion to amend its answer pursuant to

§ 27-1-703(6), MCA (1995), to allege as a seventh affirmative

defense that the Plumbs' injuries were caused, in whole or in part,

by a third party--specifically, Roberta's treating physician, Dr.

Timothy J. Adams. As part of its proposed seventh affirmative

defense, the Mall alleged that since Dr. Adams' conduct contributed

to or caused Roberta's injuries, it is entitled to a proportionate

reduction in any damages for which it might be liable pursuant to

the amended statute.

The Plumbs opposed the Mall's motion to amend for various

reasons. Significant to our decision is their contention that

§ 27-1-703(6), MCA (19951, violates their rights and Dr. Adams'

right to substantive due process pursuant to our decision in

Newville .

Over the Plumbs' objection, the District Court granted the

Mall's motion to amend its answer, and allowed the Mall to allege

as a seventh affirmative defense that Dr. Timothy Adams contributed

to or caused Roberta's injuries and that its own liability should

be reduced or eliminated accordingly.

In order to avoid the time and expense of proceeding through

trial preparation and possible trial without knowing the proper

issues to be decided or the proper parties to be named, and blamed

or defended, the Plumbs petitioned this Court for supervisory

control.

ISSUE 1

Are the facts and issues presented in this case appropriate

for resolution by supervisory control?

The Plumbs contend that supervisory control is appropriate

because this case involves a constitutional issue of major

state-wide importance, there are no factual disputes related to

that issue, and the normal appeal process is inadequate.

The Mall contends that supervisory control is not appropriate

because factual issues underlie its "nonparty defense," and that

those issues should first be resolved by the District Court.

We have, essentially, two lines of authority which set forth

the standard for when supervisory control should be exercised.

However, those standards are not consistent.

The most oft-cited standard is that "supervisory control is

appropriate where the district court is proceeding under a mistake

of law, and in so doing is causing a gross injustice." See, e.g., Potter

v. DistrictCourt (1994), 266 Mont. 384, 880 P.2d 1319; Slateexrel. Torresv.

DistrictCourt (1994), 2 6 5 Mont. 445, 877 P.2d 1008; Staleexrel. Forsylhv.

DistrictCourt (1985), 216 Mont. 480, 701 P.2d 1346; Stuteexrel. Fitzgeraldv.

DistrictCourt (l985), 217 Mont. 106, 703 P.2d 148. This standard has

its roots in the turn-of-the-century case of Slate ex rel. Whiteside v. District

Cou,? (1900), 24 Mont. 539, 63 P. 395, in which this Court

explained:

[Supervisory control] has its own appropriate

functions, and, without undertaking to define

particularly what these functions are, we think one of

them is to enable this court to control the course of

litigation in the inferior courts where those courts are

proceeding within their jurisdiction, but by a mistake of

law, or willful disregard of it, are doing a gross

injustice, and there is no appeal, or the remedy by

appeal is inadequate. Under such circumstances, the case

being exigent, no relief could be granted under the other

powers of this Court, and a denial of a speedy remedy

would be tantamount to a denial of justice.

W i e i e 24 Mont. at 562-63, 63 P. at 400

htsd,

A second line of authorities follows our decision in Stateexrel.

R c c t v. D s r c Court (1990), 244 Mont . 521, 798 P.2d 1004, where we

aid itit

held that assumption of original jurisdiction by supervisory

control is proper when:

(1) constitutional issues of -major statewide

importance are involved;

(2) the case involves purely legal questions of

statutory and constitutional construction; and

( 3 ) urgency and emergency factors exist, making the

normal appeal process inadequate.

Racicot, 244 Mont. at 524, 798 P.2d at 1006.

While it is correct that prior to R c c f we had exercised

aio

supervisory control under all three circumstances set forth in the

Racicol test, that decision has subsequently been interpreted to mean

that all three circumstances must be present before supervisory

control will be accepted. The three-part R c c t test has been

aio

followed in Craig v. District Court (1993), 262 Mont. 201, 202, 864 P.2d

791, 792-93, Stateexvel.Nelsonv.

Dist~ictCaurt (1993), 262 Mont. 70, 72, 863

P.2d 1027, 1028, and AssociatedPressv.St~e (lggl), 250 Mont. 299, 301,

We conclude that while the issues in this case satisfy either

line of authorities, there will be circumstances which are

appropriate for the exercise of supervisory control pursuant to

Article VII, Section 2(2), of the Montana Constitution, and

Rule 17(a), M.R.App.P.,which do not satisfy the three-part test.

Therefore, to the extent that the Rncicot decision suggests that all

three elements must be established before supervisory control is

exercised, and to the extent that subsequent decisions have applied

the test in that fashion, they are reversed.

An example of why the three-part test may not be appropriate

in every case is our decision in Stnte ex reL Deere & Co. v. District Cozrr!

(1986), 224 Mont. 384, 730 P.2d 396. In Deere, we exercised

supervisory control to decide another procedural issue presented by

§ 27-1-703, MCA (1981). Even though that case did not present a

constitutional issue, we accepted jurisdiction in the interest of

judicial economy. We stated:

We turn now to the other issues raised by the

parties in the cause. Wade's Backhoe contended that this

cause does not present a sufficient reason for the

issuance of a writ of supervisory control or other

appropriate writ. In view of the importance of the issue

presented here such a contention is really a subissue.

If we had decided to denv the application for writ

without comment on the qrounds that the matter could

later be looked at bv us on appeal, we would be foresoinq

an important opportunity for the instruction of the

courts and counsel as to our interpretation of amended

Section 27-1-703, MCA, under the facts presented. In

matters involvinq su~ervisorv control, this Court has

followed the practice of prdceeding on a case-by-case

basis though we are careful not to substitute the power

of supervisory control for an appeal. S a e ex reL R i v.

tt ed

D s r c C u . (l953), 126 Mont. 489, 255 P.2d 693. Justice

ititort

and judicial economy is served when, faced with a record

that shows the relator is deprived of a fundamental

right, we resolve the issue in favor of the relator and

assume jurisdiction. S a e ex uel. Coburn v. B n e t ( 1982 ) , 202

tt ent

Mont. 20, 655 P.2d 5 0 2 . We have also said that when a

cause in the District Court is mired in procedural

entanglements and an appeal is not an adequate remedy, we

will issue a writ of supervisory control. S a e e rel. L a i t

tt x evt

v. D s r c Cowt (1977) 172 Mont . 12, 560 P.2d 517.

itit , We

determine that this is an appropriate case for

supervisory control and have therefore assumed

jurisdiction.

Deere, 224 Mont. at 399, 730 P.2d at 406.

We conclude that the constitutionality of § 27-1-703(6),MCA

(1995), is likewise an appropriate issue to decide by supervisory

control. If, as we later conclude, the District Court is

proceeding based on a mistake of law when it permits the Mall to

blame an unnamed third party for Roberta's injuries, then the

course of discovery will be affected, the cost of preparation and

trial will be affected, settlement by the parties will be rendered

more difficult, and the value of any verdict will be questionable,

meaning additional time and expense for a resolution of this issue

by appeal and the inevitable subsequent litigation. Therefore, we

conclude that any remedy available to the Plumbs by appeal is

inadequate, and that the denial of a speedy remedy by supervisory

control would be a denial of justice.

ISSUE 2

Does the opportunity for a defendant to reduce its liability

by asserting as an affirmative defense that plaintiffs' damages

have been caused or contributed to by unnamed third parties

pursuant to 27-1-703( 6 ) , MCA ( 1 9 9 5 ) ~ violate principles of

substantive due process as guaranteed by the federal and state

constitutions?

When the District Court granted the Mall's motion to amend its

answer and assert an affirmative defense based on its allegation

that the alleged negligence of an unnamed third party should serve

to reduce its liability, the District Court's order was tantamount

to a determination that the 1995 amendments to § 27-1-703, MCA,

satisfied this Court's constitutional concerns about the assignment

of fault to unnamed and unrepresented third persons. That

conclusion was a conclusion of law. We review conclusions of law

to determine whether they are correct. Carbon County v. Union Reserve Coal

Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

In MontanaMilkControlBoardv. Rehberg (1962),141 Mont. 149, 376 P.2d

508, we borrowed the test of substantive due process set forth by

,

the U.S. Supreme Court in Nebbia v. New York (1934) 291 U.S. 502, 54

S. Ct. 505, 78 L. Ed. 940. We held that:

Similarly, we think Nebbia v. New York, supra,

properly sets forth the test we must use to determine

whether or not the Montana Milk Control Act denies due

process of law to the defendant Rehberg. In that case,

the United States Supreme Court said: "(T)he guaranty of due

process * " * demand^ only that the law shall not be unreasonable, arbitrary, or

capricious, and that the means selected shall have a real and szd~stantialrelation to

the object sought to be altained. It results that a regulation

valid for one sort of business, or in given

circumstances, may be invalid for another sort, or for

the same business under other circumstances, because the

reasonableness of each regulation depends upon the

relevant facts." (Emphasis added.) Nebbia v. New York,

291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469

(1934).

MilkControlBoard, 141 Mont. at 155, 376 P.2d at 512.

We have used variations of that standard since. See Newvdlev.

StateDepftofFamilyServs. (1994), 267 Mont. 237, 883 P.2d 793; To~?n&Country

EstatesAss'nv. S a e (1987), 227 Mont. 489, 740 P.2d 668; R i l r .B r i g o

ltr asev ulntn

N r h r R.R.Co. (1985), 219 Mont. 254, 717 P.2d 535; L n e v. Smith

oten idr

(1981), 193 Mont. 20, 629 P.2d 1187.

However, in essence, substantive due process analysis requires

that we decide (1) whether the legislation in question is related

to a legitimate governmental concern, and (2) that the means chosen

by the Legislature to accomplish its objective are reasonably

related to the result sought to be attained. Since we have already

held in Nwil

evle that apportionment of liability among those

responsible for a person's damage is a legitimate government

concern (Ne~wille,

267 Mont. at 254, 883 P.2d at 803), our concern in

this case is whether the 1995 amendments to § 27-1-703, MCA, are

rationally related to the accomplishment of that objective. To

address that issue, we must first set forth the legislative and

decisional history which has given rise to this issue.

The history of § 27-1-703,MCA (1981), is thoroughly discussed

in Deere. That discussion is continued, as it relates to the 1987

amendment to that statute, in N w i l .

evle We will not attempt to

repeat all that is said therein, but merely offer the following

summary to put our discussion of the 1995 amendments in context.

In 1977, the Legislature adopted a right of contribution

between or among joint tort-feasors. Section 58-607.2, RCM (1947).

After recodification, that section became what is now S 27-1-703,

MCA. However, in Consolidated Freighhvays Corporation of Delaware v. Osier (1 9),

97

185 Mont . 439, 605 P.2d 1076, we held that the contribution statute

did not apply in a situation where the plaintiff was not

contributorily negligent, and that the language of the statute did

not provide for contribution from anyone other than defendants

against whom the plaintiff had recovered judgment. For that

reason, we held that contribution could not be sought, even

pursuant to third-party practice provided for in Rule 14,

M.R.Civ.P., from persons who had not been named as defendants by

the plaintiff. ConsolidatedFreighhvays, 185 Mont. at 444, 605 P.2d at

1079.

In response to the Consolidated Freighhvays decision, the

Legislature, in 1981, amended § 27-1-703, MCA (1977), to provide

for contribution, even in those situations where contributory

negligence had not been alleged, and to allow the defendant to join

unnamed joint tort-feasors for the purpose of seeking contribution.

However, we held in Deere that since the amended statute provided

for contribution "proportional to the negligence of the parties

against whom recovery is allowed," and since recovery would not be

allowed from a person who had settled with the plaintiff,

contribution could not be had from a defendant who had previously

settled with the plaintiff. Deere, 224 Mont. at 393, 730 P.2d at

402.

In response to Deere, § 27-1-703,MCA (1981) was again amended

,

by the Legislature in 1987. The 1987 amendment eliminated the

obligation of joint and several liability for defendants who are

13

found to be fifty percent or less at fault for a plaintiff's

injuries, and permitted the trier of fact to apportion fault among

not only the parties to the lawsuit, but also nonparties, including

"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." Section 27-1-703, MCA (1987). This

so-called "nonpartyn or "empty chairf1defense was the subject of

our attention in Newville.

In N e ~ w i l l e , the plaintiffs were guardians ad litem for a minor

child who had been placed in the custody of the State Department of

Family Services, which had then placed her in a series of foster

homes, including the home of Dennis and Martha Kuipers. Edna

Goodwin was a counselor from the Department who was involved in the

child's placement with ~ e n n i sand Martha Kuipers. After the minor

child was severely abused and permanently injured by Dennis

Kuipers, both the Department and Edna Goodwin were sued Tor their

inadequate investigation and supervision of the foster home

placement. The plaintiffs settled with Edna Goodwin prior Lo trial

and proceeded to trial against Martha Kuipers and the Department.

However, the jury was provided with a verdict which allowed it to

assign a percentage of responsibility for the child's injuries to

Martha Kuipers, the Department, or Edna Goodwin. The jury did

apportion thirty-five percent of the total negligence to Edna

Goodwin.

On appeal, the plaintiffs in Newville challenged the

constitutionality of a procedure which permitted their recovery to

be reduced based on the assignment of liability to a party who had

not been present nor represented during the course of trial. We

held, first of all, that plaintiffs had standing to assert not only

their own constitutional rights, but also substantive due process

rights of the unnamed third parties because by the denial of that

party's procedural rights, the plaintiffs suffered potential

economic loss. We held that that loss could potentially result

from diminution of the plaintiffs' recovery by reducing the

percentage of the defendants I negligence. Newville, 267 Mont . at

We then discussed the 1987 amendments to § 27-1-703, MCA

(19811, and concluded that the purpose of those amendments was to

apportion responsibility for a person's damages among all those who

might have contributed as a cause to those damages in order that

those defendants named by a plaint iff could avoid paying a judgment

disproportionate to their respective degree of fault. Newville, 267

Mont. at 247-49, 883 P.2d at 799-800. After discussing the

requirements of substantive due process, we held, however, that

there were no procedural safeguards provided for in 5 27-1-703(4),

MCA (1987), to assure that the jury's apportionment of liability

was an accurate reflection of the various parties' comparative

fault. We stated:

We conclude that § 27-1-703(4), MCA (1987),

unreasonably mandates an allocation of percentages of

negligence to nonparties without any kind of procedural

safeguard. As a result, plaintiffs may not receive a

fair adjudication of the merits of their claims. It

imposes a burden upon plaintiffs to anticipate

defendants1 attempts to apportion blame up to the time of

submission of the verdict form to the jury. Such an

apportionment is clearly unreasonable as to plaintiffs,

and can also unreasonably affect defendants and

nonparties.

Newville, 267 Mont. at 252, 883 P.2d at 802. In other words, we held

that both the plaintiffs' rights to substantive due process, and

the rights of the nonparty to whom fault was assigned, had been

violated.

In dicta which followed our conclusion, but which was not the

basis for our conclusion, we noted that in other states, where a

defendant is allowed to blame nonparties, procedural requirements

had been provided which were not provided by Montana's statute.

Those procedural requirements incl-uded ( 1 ) notice to the plaintiff

and the nonparty of the defendant's intention to assign blame to a

nonparty; (2) a limitation of time within which notice of a

nonparty claim has to be made; and (3) a requirement that it is the

defendant's burden to prove that a nonparty contributed as a cause

to the plaintiff's injuries and would be partially liable.

Based on our conclusion, we struck from that part of

§ 27-1-703(4), MCA (1987),the language which allowed assignment of

liability to "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." Newville, 267

Mont. at 255, 883 P.2d at 803. We held, however, that since the

unconstitutional portion of § 27-1-703(4),MCA (1987), was neither

essential to the integrity of the statute, nor the purpose for its

enactment, the remaining parts of that statute were severable and

remained valid. Newville, 267 Mont. at 255-56, 883 P.2d at 804.

In response to Newville, the 1995 Legislature enacted the

amendments and procedures which are the subject of this appeal.

Those amendments were in the form of Senate Bill 212 which

amended subparagraph (4) of § 27-1-703,MCA (1987), to provide in

part that :

(4) . . . The liability of nonparties, including

persons released from liability by the claimant and

persons immune from liability to the claimant, must also

be considered by the trier of fact, as provided in

subsection 1 6 ) .

Senate Bill 212 also added subparagraph ( 6 ) to § 27-1-703,MCA

(1987), which provides as follows:

(6) (a) In an action based on negligence, a

defendant may assert as a defense that the damages of the

claimant were caused in full or in part by a nonparty,

which may be referred to as a nonparty defense.

(b) In determining the percentage of liability

attributable to persons who are parties to the action,

the trier of fact shall consider the negligence of

nonparties, including persons released from liability by

the claimant and persons immune from liability to the

claimant, if a nonparty defense is properly asserted in

accordance with this subsection ( 6 ) . A finding of

negligence of a nonparty is not a presumptive or

conclusive finding as to that nonparty for purposes of a

prior or subsequent action involving that nonparty.

(c) The burden of proof as to a nonparty's

liability is on the defendant or defendants who

affirmatively plead the nonparty defense, but this

subsection 6 does not relieve the claimant of the

burden of proving that negligence on the part of the

defendant or defendants contributed as a proximate cause

to the injury of the claimant or alter other proof

requirements.

(d) A nonparty defense must be affirmatively

pleaded as a part of the answer. A defendant who gains

actual knowledge of a nonparty defense after the filing

of that defendant's answer may plead the defense with

reasonable promptness, as determined by the trial court,

in a manner that is consistent with:

(i) giving the defendant a reasonable opportunity

to discover the existence of a nonparty defense;

(ii) giving the claimant a reasonable opportunity

to defend against a nonparty defense; and

(iii) giving the claimant a reasonable opportunity,

if appropriate, to add the nonparty as an additional

defendant to the action before the expiration of the

period of limitation applicable to the claim. However,

this subsection (iii) does not extend the period of

limitation or revive the action if the period of

limitation has expired.

(e) If a defendant asserts a nonparty defense, the

defendant shall notify each nonparty who the defendant

alleges caused the claimant's injuries, in whole or in

part. Notification must be made by mailing the

defendant's answer to each nonparty at the nonparty's

last-known address by certified mail, return receipt

requested.

In other words, Senate Bill 212, which proposed amendments to

§ 27-1-703,MCA (1987),revived the nonparty defense which had been

found unconstitutional in Newville, but provided several procedural

requirements which had not been present in the 1987 version of the

statute. They include: (1) the requirement that the burden of

proving a nonparty's liability is on the defendant; (2) a

requirement that the nonparty defense be affirmatively pled; and

( 3 ) a requirement that a nonparty be notified that he or she is

being blamed for the plaintiff's injuries.

The legislative history of Senate Bill 212 indicates that the

purpose for which its proponents sought its enactment was to assure

that liability for an injured person's damages was fairly

apportioned among those who are at fault, and that no party be

liable for a disproportionate amount of damages simply because of

that party's superior financial ability to satisfy the judgment.

Hearinq on SB 212 before the Senate Comrn. on Judiciary (Feb. 14,

1995) (statement of John Alke, Montana Liability Coalition).

However, conspicuous by its absence from the 1995 amendments

was any opportunity for an unnamed third person to appear and

defend himself or herself. By that omission, the proponents of

Senate Bill 212 ignored the central point of the Newville decision

where we stated:

No attorney represented Goodwin's interests at trial and

as a result, it is possible that the application of

percentage of negligence was higher than would have been

appropriate had the facts as to her case been presented

by her own counsel.

Neu'ville, 267 Mont. at 254, 883 P.2d at 803.

On appeal from the order of the District Court, the Plumbs,

and the amicicuriae who have supported their argument, contend that

if fairness is the purpose of limiting a defendant's liability to

his, her, or its percentage of negligence, then the solution

provided for by Senate Bill 212 is not rationally related to that

objective because, in spite of the additional procedural

requirements now added, a jury's apportionment of liability to

someone who is not a party to the lawsuit, has not appeared, and

has not been represented, will not be an accurate reflection of the

true degree of that person's fault.

The Mall, and the amicicuriae who have appeared on its behalf,

contend that the 1995 amendments to 5 27-1-703,MCA (1987),balance

the rights of plaintiffs and defendants by providing a procedure

for allocating liability based on the degree of a party's fault.

They contend that without the "nonparty" process provided for by

the 1995 amendments, defendants could not reduce their liability

based on the true degree of a settling tort-feasor's fault, and

that the amendments addressed all of the procedural safeguards

discussed in Newville.

We conclude that, while the State has a legitimate interest in

enacting a scheme of liability which apportions liability for

damages based on the degree of a party's fault for another person's

injuries, the nonparty defense provided for by the 1995 amendments

to 5 27-1-703, MCA (1987), is not rationally related to that

legitimate governmental objective, but is more likely to accomplish

the opposite result. We arrive at that conclusion for the

following reasons:

1. The 1995 amendments to § 27-1-703,MCA (l987),permit the

Mall to assign liability for the Plumbs' damages to Dr. Timothy

Adams without affording Dr. Adams an opportunity to defend himself.

As a result, Dr. Adams' professional reputation and economic

interests are jeopardized without an opportunity to personally

appear on his own behalf, cross-examine those witnesses who might

criticize the care he provided, or offer evidence in support of his

course of treatment. The percentage of liability assigned to Dr.

Adams following this kind of process would not be a reliable or

accurate apportionment of liability and cannot, therefore, be

rationally related to the objectives for which Senate Bill 212's

supporters contend that the 1995 amendments were enacted.

2. The Plumbs' right to recover that amount of damages from

the defendant for which the defendant is proportionally

responsible, and all of their damages in the event that the

defendant is fifty-one percent or more responsible, is jeopardized

by the potential this procedure affords for disproportionate

assignment of liability to an unnamed, unrepresented, and

nonparticipating third person. The Plumbs are entitled, pursuant

to § 27-1-703, MCA (l995),to recover all of their damages from the

Mall in the event the Mall is found to be fifty-one percent or more

at fault, and the proportionate amount of damages for which the

Mall is at fault in the event the jury finds it to be less than

fifty-one percent responsible. The greater the degree of fault

that is assigned to unnamed nonparties, the greater the reduction

in the Plumbs1 recovery. Yet, without the opportunity to appear

and defend themselves, nonparties are likely to be assigned a

disproportionate share of liability, and the Plumbsf recovery is

likely to be reduced beyond the degree to which a third party would

be found at fault if he, she, or it actually had an opportunity to

defend themselves.

3. As noted in Newville, 267 Mont. at 252, 883 P.2d at 802,

"there is no reasonable basis for requiring plaintiffs to examine

jury instructions, marshal evidence, make objections, argue the

case, and examine witnesses from the standpoint of the

unrepresented parties,ffand requiring the plaintiff's attorney to

serve in s u c h a dual capacity i s actually antithetical t o h i s or

her primary obligation, which is to represent the plaintiff by

proving the plaintiff's case.

4. To the extent that a party defendant is interested in a

true and accurate apportionment of liability, our rules of

third-party practice and § 27-1-703 4 ) , MCA (1995), already provide

(

the means by which contribution can be sought from those who have

been unnamed by the plaintiff but who may have contributed, in

fact, to the plaintiff's injuries and damages. Rule 14(a),

M.R.Civ.P., provides that a defendant may join, as a third-party

defendant, anyone who may be responsible for any part of the

plaintiff ' s claim. Section 27-1-703( 4 ) , MCA (l995), permits any

party against whom a claim is asserted for negligence resulting in

death or injury, to join any other party who may have contributed

as a cause of the plaintiff's injury for purposes of contribution.

Rule 20(a), M.R.Civ.P., has been identified as the procedural

mechanism for that joinder. We conclude that apportionment of

liability pursuant to these procedures would be rationally related

to the Legislature's objective of assigning liability based on the

degree of a party's fault for another party's damages. A person

joined as a result of these procedures would be afforded the

opportunity to participate in discovery, cross-examine those

witnesses who blame him or her, and present evidence on his or her

own behalf. Following these opportunities, which are compelled by

traditional notions of fairness, any apportionment of liability to

that third party is much more likely to bear some relationship to

reality.

The one exception to the third-party practice alternative

referred to in the preceding paragraph arises in the situation

where a settling tort-feasor may be partially liable for an injured

person's damages. As noted, based on language in § 27-1-703, MCA

(1981), which allows "cont:ribution . . . proportional to the

negligence of the parties against whom recovery is allowed,"

settling tort-feasors may not be named as third-party defendants

for the purpose of contribution. However, as also noted in Deere,

any recovery by the plaintiff is subject to a dollar-for-dollar

offset by any amount paid by the settling tort-feasor. While it is

true that, in some cases, that amount of offset may be less than

the settling tort-feasor's proportionate share of liability, the

converse is equally true. We also note that, in spite of our

decision in Deere, the language in § 27-1-703,MCA 11981), is still

present in 5 27-1-703( 4 ) , MCA (1995).

For these reasons, we conclude that that part of § 27-1-703,

MCA (1995), which allows apportionment of liability to parties who

are not named in the lawsuit and who do not have an opportunity to

appear and defend themselves (specifically, the quoted portion of

subparagraph (4) and all of subparagraph (6)'), is not rationally

'(4) . . . The liability of nonparties, including persons

released from liability by the claimant and persons immune from

liability to the claimant, must also be considered by the trier of

fact, as provided in subsection (6).

. . . .

(6) (a) In an action based on negligence, a defendant may

assert as a defense that the damages of the claimant were caused in

full or in part by a nonparty, which may be referred to as a

nonparty defense.

(b) In determining the percentage of liability attributable

to persons who are parties to the action, the trier of fact shall

consider the negligence of nonparties, including persons released

from liability by the claimant and persons immune from liability to

the claimant, if a nonparty defense is properly asserted in

accordance with this subsection (6). A finding of negligence of a

nonparty is not a presumptive or conclusive finding as to that

nonparty for purposes of a prior or subsequent action involving

that nonparty.

( c ) The burden of proof as to a nonparty's liability is on

the defendant or defendants who affirmatively plead the nonparty

defense, but this subsection (6) does not relieve the claimant of

the burden of proving that negligence on the part of the defendant

or defendants contributed as a proximate cause to the injury of the

claimant or alter other proof requirements.

related to the legitimate government objective of fairly

apportioning liability among parties based on the degree to which

their negligence contributes to another person's injuries; and

therefore, that the offending portions of 5 27-1-703, MCA (1995),

violate the right of substantive due process guaranteed to Roberta

and Martin Plumb and Dr. Timothy Adams by the Fourteenth Amendment

to the United States Constitution, and Article 11, Section 17, of

the Montana Constitution. Our conclusion that the offending

statutory provisions violate the right to substantive due process

provided for in the Montana Constitution is independent of and

separate from our analysis of those rights provided for by the

United States Constitution.

For those reasons set forth in Newville v. Slate Department of Fnmily

Services (1994), 2 6 7 Mont. 237, 883 P.2d 793, we also conclude that

those portions of 5 27-1-703,MCA (1995), which we find offensive

(d) A nonparty defense must be affirmatively pleaded as a

part of the answer. A defendant who gains actual knowledge of a

nonparty defense after the filing of that defendant's answer may

plead the defense with reasonable promptness, as determined by the

trial court, in a manner that is consistent with:

(i) giving the defendant a reasonable opportunity to discover

the existence of a nonparty defense;

(ii) giving the claimant a reasonable opportunity to defend

against a nonparty defense; and

(iii) giving the claimant a reasonable opportunity, if

appropriate, to add the nonparty as an additional defendant to the

action before the expiration of the period of limitation applicable

to the claim. However, this subsection (iii) does not extend the

period of limitation or revive the action if the period of

limitation has expired.

(e) If a defendant asserts a nonparty defense, the defendant

shall notify each nonparty who the defendant alleges caused the

claimant's injuries, in whole or in part. Notification must be

made by mailing the defendant's answer to each nonparty at the

nonparty's last-known address by certified mail, return receipt

requested.

to the right to substantive due process are not necessary to the

integrity of the remainder of that statute, were not an inducement

to the remainder of the statute's enactment, and are severable from

the valid portions of § 27-1-703, MCA (1995). We further conclude

that the remainder of the statute is capable of being implemented

in accordance with the Legislature's intent.

Based on the foregoing opinion, the District Court's order

permitting Southgate Mall Associates to amend their answer and set

forth a seventh affirmative defense which assigned liability to

unnamed persons is reversed, and this case is remanded to the

District Court for further proceedings consistent with this

opinion.

We concur:

Chief Justice

Chief Justice J. A. Turnage respectfully concurs and dissents.

I do not disagree with the result reached by the majority in

this case. However, I dissent to mu'zh that has been said in the

majority opinion which is overbroad a.nd entirely unnecessary.

The first issue in this case is whether the facts and issues

presented are appropriate for resolution by supervisory control.

In State ex rel. Racicot v. District Court (1990), 244 Mont.

521, 798 P.2d 1004, this Court held that assumption of original

jurisdiction by supervisory control is proper when three

circumstances exist:

(1) constitutional issues of major statewide

importance are involved;

(2) the case involves purely legal questions of

statutory and constitutional construction; and

(3) urgency and emergency factors exist, making the

normal appeal process inadequate.

Racicot, 244 Mont. at 524, 798 P.2d at 1006 (emphasis added).

This three-part test has been followed in our subsequent

decisions of Craig v. District Court (l993), 262 Mont. 201, 864

P.2d 791; State ex rel. Nelson v. District Court (1993), 262 Mont.

70, 863 P.2d 1027; and Associated PreE:sv. State (1991), 250 Mont.

299, 820 P.2d 421.

The majority in this case conclc.des that the issues in this

case satisfy all three of the three-part requirements of the

Racicot decision and the cases that followed that decision. The

majority, however, goes on the conclude that to the extent that the

Racicot decision requires that all three elements be satisfied

before this Court will accept supervisory control, it is necessary

26

to reverse the Racicot decision and the subsequent decisions that

have applied the test as set forth in Racicot.

To the extent that the majority opinion reverses this prior

precedent, I believe the majority opinion is wrong.

Under this new approach to the granting of supervisory control

it is entirely possible that all a petitioner need allege is that

the issues involved in the petition address constitutional issues

of major statewide importance the case involves a purely legal

question of statutory or constitutional construction.

This part of the majority opinion is an open invitation for

petitioners to come to this Court and point to this case as

precedent asking this Court to intervene and decide the case for

them without the necessity of proceeding with a normal appeal

process.

This short-cut to questionable justice is inappropriate and

undoubtedly will bring to the Supreme Court a great number of

extraordinary petitions for supervisory control. I therefore

respectfully dissent to the foregoing portion of the majority

opinion.

I further dissent to a portion of what has been stated in the

majority opinion concerning the second issue in this case, relating

,

to the constitutionality of that portion of S 27-1-703(6) MCA

(1995) relating to damages caused or contributed to by unnamed

third parties.

I do not disagree with the ultimate result of the Court's

decision in its conclusions on that issue; however, I believe that

the Court's conclusion is far too overbroad and unnecessary.

I agree with that portion of the majority opinion which

states :

TO the extent that a party defendant is interested

in a true and accurate apportionment of liability, our

rules of third-party practice and 5 27-1-703(4), MCA

(1995), already provide the means by which contribution

can be sought from those who have been unnamed by the

plaintiff but who may have contributed, in fact, to the

plaintiff's injuries and damages. Rule 14 (a),

M.R.Civ.P., provides that a defendant may join, as a

third-party defendant, anyone who may be responsible for

any part of the plaintiff's claim. Section 27-1-703( 4 ) ,

MCA (1995), permits any party against whom a claim is

asserted for negligence resulting in death or injury, to

join any other party who may have contributed as a cause

of the plaintiff's injury for purposes of contribution.

Rule 20(a), M.R.Civ.P., has been identified as the

procedural mechanism for that joinder. We conclude that

apportionment of liability pursuant to these procedures

would be rationally related to the Legislature's

objective of assigning liability based on the degree of

a party's fault for another party's damages. A person

joined as a result of these procedures would be afforded

the opportunity to participate in discovery, cross-

examine those witnesses who blame him or her, and present

evidence on his or her own behalf. Following these

opportunities, which are compelled by traditional notions

of fairness, any apportionment of liability to that third

party is much more likely to bear some relationship to

reality.

Having set forth this rational approach to a method of

apportionment of liability as a legislative objective in assigning

liability based on the degree of a party's fault for another

party's damages, the majority opinion at that point jumps off the

track and states: "The one exception to the third-party practice

alternative referred to in the preceding paragraph arises in the

situation where a settling tortfeasor may be partially liable for

an injured person's damages." The majority opinion relies on State

ex rel. Deere & Co. v. District Court (1986), 224 Mont. 384, 730

P.2d 396, to support this exception to the third-party practice

alternative. This reliance is misplaced.

In Deere this Court stated that "the principal issue we decide

here is that a joint tortfeasor who settles with the claimant

before judgment on the claim is entered in a district court is not

subject to claims for contribution . . . from the nonsettling joint

tortfeasors. Deere, 730 P . 2 d at 3 9 8 .

The majority opinion in this case states that "settling

tortfeasors may not be named as third party defendants for the

purposes of contribution."

Deere is based upon § 27-1-703, MCA (l98l), relating to

contribution. Deere does not address the question of apportionment

of liability. This Court in Deere stated with relation to the

question of contribution, which again I repeat is not an issue in

this case, the following:

In reality, our decision on this issue is hinged

upon our earlier interpretation of the statute herein

that no right of contribution exists from a settling

tortfeasor. It would make no sense to keep a settling

tortfeasor in the action as an additional defendant or a

third party defendant to determine its proportional fault

for plaintiff ' s injuries, when the nonsettling defendants

have no right of contribution from the settling

defendant. Contribution under § 27-1-703 is the

obligation of "parties against whom recovery is allowed.

Deere, 730 P.2d at 404.

Contribution and apportionment of liability are two separate

and distinct legal concepts. Deere does not support carving out an

exception to the third-party practice alternative, and, in doing

so, I respectfully submit that the majority opinion is wrong.

Certainly the legislature has a legitimate interest in

29