1. Plaintiff’s Comparative Negligence
Montana is a comparative negligence jurisdiction. A plaintiff will be denied recovery if her negligence is greater than the negligence of the defendant, or the combined negligence of all persons against whom recovery is sought. If recovery is allowed, a plaintiff’s damages will be reduced by the percentage of negligence attributable to her. M.C.A. §27-1-702.
For example, assume Plaintiff and Defendant are involved in an automobile accident. The jury determines Plaintiff has suffered $10,000 in damages and was 40% negligent. Defendant meanwhile was found to be 60% negligence. Plaintiff will be able to recover from Defendant because Plaintiff’s negligence is less than Defendant’s negligence. Plaintiff’s total recovery, however, will be reduced by 40%. Therefore, Defendant’s total liability will be $6,000.
It is unclear whether a defense of comparative negligence is available in an intentional tort case. Boyken v. Steele, 256 Mont. 419, 847 P.2d 282 (1993). It is well established, however, that comparative negligence is not a defense when recovery is based on a theory of strict liability. M.C.A. §27-1-719(5); Lutz v. National Crane Corp., 267 Mont. 368, 884 P.2d 455 (1994).
2. Joint and Several Liability
By statute, a defendant is jointly and severally liable for all of Plaintiff’s damages if the defendant is more than 50% negligent when the Defendant’s negligence is compared to the negligence of the Plaintiff, injured person, other defendants, third party defendants, and parties released from liability by the Plaintiff. M.C.A. §27-1-703(1), (2), (4).
Caution: The Montana Supreme Court has declared previous joint and several liability statutes unconstitutional to the extent they permitted a defendant’s negligence to be compared with the negligence of parties released from the action by Plaintiff. The remaining defendants, however, are entitled to a dollar for dollar set-off equal to the settlement amount. The Court has also prohibited the comparison of a Defendant’s negligence with parties who have not been brought into the action. Cusenbary v. Mortensen, 987 P.2d 351 (Mont. 1999); Plumb v District Court, 279 Mont. 363, 927 P.2d 1011 (1996).
Here is an example of how these rules may play out: Plaintiff A is involved in an automobile accident with B, C and D. Plaintiff files suit against B, C and D. Shortly thereafter, A enters into a good faith settlement with B for $1,000. At trial, it is determined that A suffered $11,000 in damages. The court also determined C was 51% negligent, A was 0% negligent, and D was 49% negligent. Based on the settlement, the total damages A can collect is $10,000. (The total verdict of $11,000 less the $1,000 already paid by B). D is only liable for $4,900. C, meanwhile, is liable for the entire $10,000 because C’s negligence is more than 50% when compared to the negligence of A and D. Any effort made by C to avoid joint and several liability by comparing his negligence to B, may be declared unconstitutional. C is allowed to try to put blame on A and D because A and D were at trial.
Contribution is allowed under limited circumstances. A defendant who is found to be jointly and severally liable may recover any amounts he paid to the plaintiff in excess of his pro-rata share of fault. This recovery may be sought from any other person whose negligence may have proximately caused the plaintiff’s injury, but only up to that party’s share of the fault. M.C.A. §27-1-703(1). No contribution is allowed however against a co-defendant who has entered into a settlement with the plaintiff. Deere v. District Court, 224 Mont. 384, 730 P.2d 396 (1986).
Again, an example is helpful to illustrate these points. A brings suit against B, C, and D. Shortly thereafter, A settles with B for $1,000. At trial, it is determined that A suffered $11,000 in damages. The jury also determined A was 0% negligent, C was 70% negligent, and D was 30% negligent. Subsequently, C paid $10,000 to A to satisfy the judgment. C would receive a dollar for dollar credit for the monies paid by B. Under the statute, C is entitled to file a claim for contribution against D for $3,000. C, however, is not entitled to seek contribution against B.
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