Prudential Life Insurance Co. v. Moody

696 S.W.2d 503, 1985 Ky. LEXIS 264

• Court: Kentucky Supreme Court
• Decided: September 5, 1985
• Status: Published

Opinions

STEPHENSON, Justice.

The decision of the Court of Appeals permitted the respondents to recover their full amount of damages from one tort-feasor after a joint tortfeasor was freed from liability by this court. We granted discretionary review and reverse.

Respondents were injured when a balcony on which they were standing collapsed. Prudential Life Insurance Company and Nichols-Thornton-Sturgeon Development Company (whose interests are similar) owned the building, and David Carney was the builder. The respondents sued Prudential, Nichols-Thornton-Sturgeon, and Carney, alleging negligence in construction as to Carney and failure by Prudential to discover the defects and to maintain the building in a safe manner. At trial, Carney raised the statute of limitations as a defense, arguing that because the building had been completed more than five years before the accident, KRS 413.135 barred the action against him. The trial court rejected this argument and submitted the case to the jury. The jury returned a ver-diet against both defendants, apportioning the liability 50 percent to Prudential and 50 percent to Carney. The Court of Appeals affirmed that award, but this court granted discretionary review, and in Carney v. Moody, Ky., 646 S.W.2d 40 (1983), we reversed the judgment as to Carney, finding that the five-year statute of limitations was applicable.

Respondents then moved the trial court to have a judgment entered against Prudential for the entire amount of the jury award. The trial court refused this request, but the Court of Appeals reversed that decision, one judge dissenting. The Court of Appeals reasoned that if the trial court had properly dismissed Carney from the case before it was submitted to the jury, full liability would have been assessed against Prudential. Therefore, it was proper to assess 100 percent of the liability against Prudential after this court freed Carney of liability.

The apportionment of liability among joint tortfeasors is statutory, contained in KRS 454.040, which provides:

In actions of trespass the jury may assess joint or several damages against the defendants. When the jury finds several damages, the judgment shall be in favor of the plaintiff against each defendant for the several damages, without regard to the amount of damages claimed in the petition, and shall include a joint judgment for the costs.

The Court of Appeals reasoned that apportionment is permitted only against “defendants” which necessarily means joint defendants, citing Nix v. Jordan, Ky., 532 S.W.2d 762 (1975), and concluded since we held that Carney should have been dismissed on his plea of limitations, he could not have been considered a “defendant” in the literal sense for the purpose of the apportionment statute. We are of the opinion the Court of Appeals is in error in this respect. We do not give such a narrow reading to KRS 454.040.

We are of the further opinion the circumstances of this case fall squarely within the factual situation in Daulton v. Reed, Ky., 538 S.W.2d 306 (1976). In a three-way automobile collision case, the Reeds filed suit against Daulton and Phillips. Before the case was submitted to the jury, the Reeds dismissed their claim against Phillips. The jury verdict apportioned causation 75% against Daulton and 25% against Phillips. The trial court rendered judgment against Daulton for the full amount since Phillips had been dismissed from the suit. We held the trial court in error, that the judgment against Daulton should have been for 75% of the award to the Reeds. We reasoned that the principle of Orr v. Coleman, Ky., 455 S.W.2d 59 (1970), applies when there has been an active assertion of a claim against one who would be a defendant but for the fact that he has settled the claim. The same rationale applies to the situation in which the claim asserted by the Reeds against Phillips was later dropped, whatever may have been the reason. Being of the opinion Daulton is controlling, we are of the opinion the decision of the Court of Appeals is in error.

The decision of the Court of Appeals is reversed, and the judgment of the trial court is affirmed.

STEPHENS, C.J., and AKER, GANT, STEPHENSON and VANCE, JJ., concur.

VANCE, J., files a separate concurring opinion.

LEIBSON, J., dissents and files a separate dissenting opinion in which WINTER-SHEIMER, J., joins.