By KYLA ASBURY
CHARLESTON – The state Supreme Court says a circuit court did not err in putting a man's name on a verdict form.
The is an appeal from the circuit court's denial of Modular Building Consultants of West Virginia Inc.'s motion for judgment as a matter of law or for a new trial following an adverse jury verdict on Modular's claims for contribution and indemnification.
Chief Justice Margaret Workman authored the majority opinion. Justices Brent Benjamin and Allen Loughry concurred, with Loughry authoring a concurring opinion.
Modular contends that the jury’s finding that Poerio Inc. was negligent is inconsistent with its finding that Poerio did not breach the lease agreement; the circuit court erred in ruling that Modular's contribution claim was extinguished by its good faith settlement with the injured plaintiff; and the circuit court erred in allowing the injured plaintiff’s comparative fault to be assessed by the jury.
"Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we conclude that the circuit court erred in finding that Modular’s contribution claim was extinguished as a matter of law," the May 21 opinion states. "However, we further find that the jury’s verdict was neither inconsistent nor impermissibly considered the comparative fault of the injured plaintiff. We find, therefore, that judgment was properly entered in favor of Poerio and affirm the order of the circuit court."
On July 14, 2011, Jarrett Smith was injured when his vehicle collided with a truck owned by Modular and operated by Billy Joe McLaughlin.
Prior to the collision, McLaughlin had arrived at a jobsite at Geary Elementary School to retrieve a modular storage container being leased and utilized by Poerio, the general contractor on the project.
McLaughlin testified that the main entrance of the school was blocked by stacks of bricks and vehicles, which required him to utilize the construction entrance located closer to where the storage unit was sitting.
Upon attempting to access the construction entrance, McLaughlin testified he was unable to pull his truck fully into the jobsite because the clearance he required was partially obstructed by the storage container and a white work van. Because of this, the vehicle protruded into the main roadway.
At trial, Poerio offered witnesses to testify that the main entrance was not obstructed by bricks or vehicles at the time of the accident.
Smith filed suit against Modular, who then brought a third-party complaint against Poerio, making claims from contribution and indemnification pursuant to the lease agreement.
Modular claimed that Poerio breached the provision of the lease agreement requiring it to provide "free and clear access" for return of the storage container.
Shortly before trial, Modular settled with Smith and obtained a release from him releasing both Modular and Poerio. The trial as to Modular's third-party complaint proceeded and the jury was asked to determine whether Poerio breached its lease agreement; and whether Poerio, Modular or Smith were negligent and in what percentages.
The jury found that Poerio did not breach the lease agreement and that Poerio was 20 percent at fault for the accident, Modular was 20 percent at fault and Smith was 60 percent at fault.
Modular filed a motion for judgment as a matter of law, or alternatively, a new trial, arguing that the jury's finding that Poerio did not breach the lease agreement was inconsistent with its finding that Poerio was negligent.
Modular contended that the only possible way Poerio could have been negligent for the accident was by failing to provide free and clear access to the storage unit and that failing to provide free and clear access was a violation of the lease agreement.
Without specifically reconciling the two jury findings, the circuit court concluded that it was exclusively the jury's province to weigh the evidence and could make both findings.
Secondly, Modular argued that its contribution claim was not extinguished by settling with Smith because it had obtained a release for both its and Poerio's liability as part of the settlement, thereby preserving its contribution claim.
The circuit court concluded that because Smith testified, the jury had the necessary evidence to apportion fault to him and that, even if erroneous, it was harmless error. As a result, the circuit court denied Modular's motion and Modular appealed to the State Supreme Court.
"With Mr. Smith having settled, apportionment of fault for purposes of the joint and several statute is pointless; Smith is not seeking to 'recover' from the joint tortfeasors," the opinion states. "We therefore find that the circuit court committed no error in permitting Mr. Smith to be placed on the verdict form for purpose of fault apportionment. Inasmuch as the jury returned a verdict of 60 percent negligence as to Mr. Smith, Poerio is entitled to judgment in its favor as to Modular’s contribution claim"
In his concurring opinion, Loughry stated that he fully concurred in the majority’s conclusion that Modular advanced a proper contribution claim and wrote separately to express his strong belief that this Court must revisit the holding in Charleston Area Medical Center Inc. v. Parke-Davis.
"It is clear from the arguments advanced in the case sub judice that there remains considerable confusion about the means by which a viable contribution claim may be asserted," his concurring opinion states. "Although the concepts in Parke-Davis are only tangentially implicated in this case, at the heart of the ongoing confusion is most certainly the wholly nonsensical conclusion in Parke-Davis that contribution among joint tortfeasors may only be had when an injured plaintiff initiates a lawsuit."
Not only does this conclusion unfairly place joint tortfeasors somewhat at the mercy of the allegedly injured party, it frustrates the long-standing precept that "[t]he law favors and encourages the resolution of controversies by contracts of compromise and settlement rather than by litigation[.]"
The petitioners were represented by Brent K. Kesner and Ernest G. Hentschel II of Kesner & Kesner PLLC.
The respondent was represented by Benjamin T. Hughes of Pullin Fowler Flanagan Brown & Poe PLLC.
W.Va. Supreme Court of Appeals case number: 14-0158