by John Heenan and Joe Cook

Mont. Code Ann. § 27-1-703 is the statute addressing multiple defendants. It is frequently invoked by defendants to utilize the “empty chair” defense against settled or judgment-proof defendants and, consequently, we often find ourselves having it used as a sword by the other side. But did you know the statute can also be a sword for our clients in multiple defendant cases? Let’s say you have a case where multiple defendants cause serious injury to your client. One of the defendants has no money and is judgment-proof. Another has substantial assets to collect against. Maybe the deep-pocketed defendant thinks (hopes) he will only pay “his share” of the damages he caused, leaving your client in the lurch. This is where § 27-1-703, MCA kicks in. It provides in relevant part:

Multiple defendants — determination of liability

(1) Except as provided in subsections (2) and (3), if the negligence of a party to an action is an issue, each party against whom recovery may be allowed is jointly and severally liable for the amount that may be awarded to the claimant but has the right of contribution from any other person whose negligence may have contributed as a proximate cause to the injury complained of.

(2) A party whose negligence is determined to be 50% or less of the combined negligence of all persons described in subsection (4) is severally liable only and is responsible only for the percentage of negligence attributable to that party, except as provided in subsection (3). The remaining parties are jointly and severally liable for the total less the percentage attributable to the claimant and to any person with whom the claimant has settled or whom the plaintiff has released from liability.

(3) A party may be jointly liable for all damages caused by the negligence of another if both acted in concert in contributing to the claimant’s damages or if one party acted as an agent of the other.

In short, Subsection (1) of § 27-1-703, MCA provides the general rule in Montana that all defendants who contribute to an indivisible injury are “jointly and severally” liable. Joint and several liability is premised on the theory that the defendants are in the best position to apportion damages amongst themselves. Once liability has been established and damages awarded, the defendants are free to litigate amongst themselves to better divide the liability. The plaintiff no longer needs to be involved in the litigation and can avoid the costs of continuing litigation.

Subsection (2) is the exception to the general rule and provides a party is only severally liable where its negligence is determined to be 50% or less of the combined negligence. This is the part that substantially erodes the public policy for joint liability, and often leaves our clients being made far from whole if they can only recover against one of several tortfeasors. One thing to remember, however, is the distinction between contributory negligence and several liability.  While contributory negligence of 51% bars recovery by a Plaintiff, a severally liable Defendant is still responsible for their proportional share of the damages.  This is especially important to remember in innocent Plaintiff cases where the Defendant counterclaims or brings a third-party claim against a parent or family member. 49% liability does not preclude recovery to the innocent plaintiff. For instance, in a case where a parent driver is involved in a collision that kills their passenger minor child the caption may read:

Parent John Smith, individually and as PR of the Estate of Child Smith v. Defendant Tortfeasor.  In this case, if the parent if found 51%  liable the Estate still collects 49% of the damages from the Defendant. In these cases, strongly consider who your personal representative is to avoid confusion and negative attribution to the innocent Estate.

Importantly, Subsection (3) is an exception to the exception, and provides for joint liability for defendants where they “acted in concert” or “as an agent of one another.” Consistent with Subsection (3), Judge Moses recently instructed the jury about joint liability consistent with Subsection (3) in the case of Stamp v. Morgan, DV 17-1195 (Thirteenth Jud. Dist.) as follows:

“A defendant may be jointly liable for all damages caused by the negligence of another defendant if both acted in concert in contributing to the Stamps’ damages or if one defendant acted as an agent of the other. If you find that the Stamps are entitled to recover damages against more than one defendant, and that the defendants are jointly liable, you must return a verdict in one single sum against all the defendants you find to be liable. You must not allocate the damages between the defendants.”

The public policy is and should be that where there are multiple tortfeasors, the injured party should be quickly and fully compensated as efficiently as possible.  Then, the tortfeasors can fight amongst themselves about how to collect from difficult or less-solvent wrongdoers. The way to get there is under § 27-1-703(3), MCA. In cases with multiple tortfeasors, if appropriate, make sure you have pled and are developing facts to prove agency and/or acting in concert so that your client will have the right and remedy of joint liability.