In negligence cases (car accidents, slip and falls, and most injury cases), a Montana jury compares the carelessness of the defendant against the claimed negligence of the plaintiff, and the plaintiff has no recovery if the share of his/her negligence exceeds that of the defendant(s).
In some cases, more than one defendant is negligent. The state may negligently design a section of road, and a defendant's negligent driving may combine with the state's negligent design to injure the plaintiff. In such a case, Montana requires the negligence of all defendants to be determined. The question then arises: what if one potential defendant is not sued, because of a settlement, an immunity, or a desire to simply leave the person alone? Montana has wrestled with this problem for over 20 years. The current solution allows the plaintiff to sue, the defendant(s) to point the finger at the others (including the plaintiff), and a minor contributor to avoid responsibility for all but his or her share of the plaintiff's damages. The solution is in section 27-1-703, MCA.
That code section says that defendants are jointly and severally liable, except a defendant whose negligence is less than 50% is only severally liable. What does this mean? Joint and several liability is a nationally controversial issue. Insurance companies want to limit their liability and insist that no defendant should have to pay for more than his or her percentage of fault. Limiting a defendant's liability to such a fault percentage is what "several" liability does. "Joint" liability, on the other hand, makes a defendant liable for all of a plaintiff's injuries without regard to percentages of fault.
The Montana statute allows multiple defendants to be brought into a lawsuit, by either a plaintiff or by other defendants, and at trial the jury is mandated to determine the percentage of fault in a negligence case of all defendants, including would-be defendants. Montana allows "contribution" where a defendant(s) cannot or is unavailable to pay his or her share.
The big controversy in Montana has been about what to do about absent defendants, the persons not sitting in the "empty chair" in the courtroom during a jury trial. This "empty chair" has occupied significant time and legal talent in the 30-plus years since Montana adopted comparative negligence. Twice the Montana Supreme Court has struck down the statute that mandates determination of the liability of parties who are not sitting in the empty chairs, on grounds that the liability of such parties cannot be determined fairly and constitutionally in their absence. The Court's decisions have guided legislative efforts which now allow "empty chairs" to be filled by any potential defendants except those who have settled, those who are immune, those who are not subject to the Court's jurisdiction, and those who could have been, but were not, named as defendants.
Under the current formula, only those who can be corralled into a judgment at the time of trial are subject to the allocation of responsibility by the jury.
This solomonic solution has held together since the 1996 decision of Plumb v. District Court. The challenge of coming to terms with this problem mirrors the challenge facing the Montana bar and judiciary in the areas of subrogation and allocation of negligence. These complex areas are just another reason that competent legal representation is essential in any injury claim.
For strong and effective representation in any kind of negligence case, contact Howard Toole Law Offices, (406) 728-4682, or view our website at www.howardtoolelaw.net.
