Apportionment Claim?

April 20, 2006

The Court of Appeals recently released Perry v. Parks, unpublished, which is the latest on Kentucky’s apportionment statute. In Perry, Parks was involved in an accident with Smith. Perry was a passenger in Smith’s car. Perry brought suit against Parks. Parks filed a third party complaint against Smith for “indemnity or contribution or apportionment”. Perry then amended her complaint to name Smith.

The Morgan Circuit Court dismissed “all claims” against Smith, but explained that the judgment was not intended to preclude an apportionment instruction. At trial the jury was given an instruction permitting it to apportion fault between Parks and Smith. The jury exonerated Parks, placing fault for the accident on Smith.

One of the issues on appeal was whether the trial court should have dismissed Parks’ third party complaint against Smith, after determining that Parks “was not entitled to indemnity or contribution and that apportionment, the real relief that Parks sought, did not require and would not support a cause of action.” Although the Appeals Court did not agree with Perry’s contention that an apportionment instruction was error, it did agree that the Park’s complaint should not to have been dismissed.

Citing to KRS 411.182, Kentucky’s comparative fault statute, the Court said; “the statute contemplates a third-party action for apportionment against a third-party defendant who allegedly shares fault for the first-party plaintiff’s injury. The third-party defendant must be within the trial court’s jurisdiction and must not be immune from suit altogether. She need not, however, be subject to a claim for damages for the apportionment claim to lie.” (emphasis added). The Court noted that the third-party should not be dismissed, because the third party defendant may wish to contest the imputation of fault even if her own damages are not at stake. It found this particular dismissal to be harmless error.

Comment: This opinion bothers me for several reasons. First, it is another unpublished opinion on an issue that will have a subtle behind the scenes affect on tort practitioners in Kentucky. It makes no sense from a practical or procedural standpoint and is completely contradictory to the current handling of third party claims. Second, it appears to create a cause of action or claim for apportionment, which until now did not exist in Kentucky. You would think that such a move would at least warrant a published opinion.

KRS 411.182 clearly allows for allocation of fault in tort actions. However, it contemplates that this allocation will occur only to parties, including third party defendants. This allocation of fault is the result to be achieved. Unfortunately, CR 14, which governs third party practice, is the vehicle through which a third party claim is added. CR 14 requires the assertion of a claim against a nonparty who may be liable to the defendant for part of plaintiff’s damages. Historically, this has involved a third party claim for contribution or indemnity. With the advent of comparative fault a request for “apportionment” was added. This procedure accomplished the requirements of both KRS 411.182, which required a party, and CR 14, which required a claim.

This procedure was of course subject to dismissal, since a claim for contribution no longer exists and indemnity has been relegated to very few situations. Until now, the appropriate practice (in cases like Perry) was for the third-party defendant to move for summary judgment on the third-party’s plaintiff’s claim for contribution and indemnity or to enter into a nominal settlement and release. This would allow the third party defendant to be dismissed and yet still allow for apportionment.

This opinion, of course, throws that whole practice on its head. Now, there is a claim for apportionment, which cannot be dismissed or settled (at least without the third party plaintiff waiving his right to an apportionment against plaintiff). A third party defendant is now required to appear at trial and “contest the imputation of fault” whether he wants to or not. This is of course an absurd result to reach when the sole purpose is to have the nonparty added to comply with KRS 411.182.

While I agree that changes may need to be made to KRS 411.182, CR 14, or both to reconcile their language, I do not agree that there is such a thing as an “apportionment claim.” Nor do I believe this Court has explained how such a claim would even meets the requirements of CR 14 and third party practice. I certainly do not agree that an unpublished opinion is the means by which a new cause of action or procedure should be identified.

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