Justia.com Opinion Summary: In this personal injury case, Plaintiff Alfred Ocasio appealed a judgment entered in favor of Defendant Federal Express Corporation (FedEx). Plaintiff was a mail handler who pulled by hand, large, heavy canisters filled with mail from delivery tractor-trailer trucks. One day as he was pulling canisters from a FedEx tractor-trailer truck, he accidentally stepped into and caught his leg in a gap between the rear of the truck and the loading dock. When a canister he had been pulling continued to roll toward him, the bones of his trapped leg were shattered. He argued on appeal that the Trial Court erred when it allowed the jury to apportion fault to his employer, the United States Postal Service (USPS), and when, despite the jury's $1,445,700 verdict in his favor, it entered judgment for FedEx after comparing the fault allocated to him to the fault allocated to FedEx. Upon review, the Supreme Court held that "while it was not error to allow the jury to apportion fault to the USPS, it was error to deny the plaintiff any recovery against FedEx. We, thus, affirm in part, reverse in part, and remand."
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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
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Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
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page is: http://www.courts.state.nh.us/supreme.
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-southern judicial district
No. 2010-157
ALFRED OCASIO
v.
FEDERAL EXPRESS CORPORATION
Argued: April 13, 2011
Opinion Issued: September 22, 2011
Winer and Bennett, LLP, of Nashua (Peter G. Webb on the brief, and
John V. Dwyer, Jr. orally), for the plaintiff.
Desmarais, Ewing & Johnston, PLLC, of Manchester (David Johnston
and Heather G. Silverstein on the brief, and Mr. Johnston orally), for the
defendant.
CONBOY, J. In this personal injury case, the plaintiff, Alfred Ocasio,
appeals the entry of judgment in favor of the defendant, Federal Express
Corporation (FedEx). He argues that the Trial Court (Barry, J.) erred when it
allowed the jury to apportion fault to his employer, the United States Postal
Service (USPS), and when, despite the jury’s $1,445,700 verdict in his favor, it
entered judgment for FedEx after comparing the fault allocated to him to the
fault allocated to FedEx. See RSA 507:7-d, :7-e (2010). We hold that while it
was not error to allow the jury to apportion fault to the USPS, it was error to
deny the plaintiff any recovery against FedEx. We, thus, affirm in part, reverse
in part, and remand.
I. Background
A. The Accident
The jury could have found the following facts. The plaintiff was a mail
handler for the USPS. His job included pulling, by hand, large canisters filled
with mail (air cans) from delivery tractor-trailer trucks. Ball bearings were
affixed to the floor of the truck beds, as well as the floor of the loading dock,
allowing the USPS employees to roll the air cans from the trucks onto the
loading dock and into the USPS facility. The air cans typically weigh between
3,000 and 5,000 pounds.
On February 17, 2002, the plaintiff was pulling air cans from a FedEx
tractor-trailer truck when he accidentally stepped into and caught his leg in a
gap between the rear of the truck and the loading dock. When the air can he
had been pulling continued to roll toward him, the bones of his trapped leg
were shattered. Although the plaintiff’s leg was saved after reconstructive
surgery, it is of limited use. He cannot stand or walk for very long and he
cannot lift and carry heavy things. He has since lost his job at the USPS.
B. Recovery Against USPS
Due to his work-related accident, the plaintiff received benefits totaling
approximately $80,353 under the Federal Employees’ Compensation Act (the
Federal Act). See 5 U.S.C.A. §§ 8101 et seq. (2007). Pursuant to the Federal
Act, these benefits are the plaintiff’s exclusive remedy against the USPS. See 5
U.S.C.A. § 8116(c). Moreover, the Federal Act requires the plaintiff to refund to
the United States any money he receives as a result of a suit or settlement from
a third party, less costs of the suit and a reasonable attorney’s fee, see 5
U.S.C.A. § 8132; see also 20 C.F.R. § 10.711 (2010), or to “assign to the United
States any right of action he may have to enforce the liability or any right he
may have to share in money or other property received in satisfaction of that
liability,” 5 U.S.C.A. § 8131(a)(1).
C. Lawsuit Against FedEx
The plaintiff sued FedEx for damages, alleging, among other claims, that
FedEx’s negligence caused his injuries. Consistent with the Federal Act, the
plaintiff did not name as a defendant the USPS, his immune employer. Before
trial, the plaintiff moved in limine to preclude the jury from apportioning fault
for his injuries to the USPS, arguing that if the jury were to do so, he “would
essentially be punished for receiving benefits from his negligent employer.” He
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explained: “Since any recovery [he] . . . might receive is already bound to be
diminished by a worker’s compensation lien, . . . it is unfair to additionally
reduce that recovery by imputing separate, independent liability upon his
employer.” The trial court denied the motion, and gave the jury a special
verdict form requiring it to consider whether the USPS was legally at fault to
any degree.
The jury found the plaintiff’s damages to be $1,445,700, and found that
the plaintiff was six percent at fault, FedEx was four percent at fault, and the
USPS was ninety percent at fault. Thereafter, FedEx moved for entry of
judgment in its favor, arguing that pursuant to RSA 507:7-d, because the
plaintiff’s percentage of fault (6%) was greater than FedEx’s percentage of fault
(4%), the plaintiff was not entitled to recover any damages against FedEx. See
RSA 507:7-d, :7-e, I(b). The trial court agreed, and this appeal followed.
II. Discussion
On appeal, the plaintiff argues that the trial court erred in two respects:
first, when it allowed the jury to apportion fault to the USPS, see RSA 507:7-e,
I(a), even though the USPS was not named as a defendant in the lawsuit and
was immune from liability pursuant to the Federal Act, see 5 U.S.C.A.
§ 8116(c); and, second, when it ruled that recovery against FedEx was barred
because his degree of fault was found to be greater than FedEx’s, see RSA
507:7-d, :7-e, I(b).
A. Apportionment of Fault
1. DeBenedetto
RSA 507:7-e governs apportionment of fault to both claimants and
tortfeasors. It is part of a comprehensive statutory framework for
apportionment of liability and contribution. DeBenedetto v. CLD Consulting
Eng’rs, 153 N.H. 793, 798 (2006). It provides, in pertinent parts:
I.
In all actions, the court shall:
(a) Instruct the jury to determine, or if there is no jury shall
find, the amount of damages to be awarded to each claimant and
against each defendant in accordance with the proportionate fault
of each of the parties; and
(b) Enter judgment against each party liable on the basis of the
rules of joint and several liability, except that if any party shall be
less than 50 percent at fault, then that party’s liability shall be
3
several and not joint and he shall be liable only for the damages
attributable to him.
RSA 507:7-e, I(a), (b).
In DeBenedetto, we ruled that RSA 507:7-e permits a jury to apportion
fault to an immune non-party, such as the USPS. DeBenedetto, 153 N.H. at
804. At issue in DeBenedetto was whether the trial court erred when it
instructed the jury to apportion fault to two non-parties. Id. at 797. One nonparty, Doris Christous, was the driver of the car that collided with the plaintiff’s
husband’s car. Id. at 795. Christous’s insurance carrier paid damages upon
demand and Christous was not named as a defendant in the plaintiff’s
subsequent lawsuit. Id. The other non-party was the New Hampshire
Department of Transportation (DOT), which was a named defendant, but was
dismissed before trial on grounds of immunity. Id.
The DeBenedetto plaintiff argued that the trial court’s instruction to the
jury to include Christous and the DOT when apportioning fault violated the
plain language of RSA 507:7-e, I(a). Id. at 797. The plaintiff asserted that the
words “party” or “parties,” as used in RSA 507:7-e, I, referred only to the
parties actually involved in the case. DeBenedetto, 153 N.H. at 800. We
disagreed, and construed the terms to refer to all entities contributing to the
plaintiff’s loss, including unnamed and immune non-parties. Id. at 798, 803.
The plaintiff in this case argues that our holding in DeBenedetto should
not apply to the USPS even though it, like the DOT in DeBenedetto, is an
immune non-party who contributed to the plaintiff’s loss. In addressing his
arguments, we begin by reviewing the legislative history of RSA 507:7-e, as
related in our prior cases, as well as our case law interpreting the statute.
2. Legislative History of RSA 507:7-e and Prior Case Law
RSA 507:7-e was enacted in 1986 as part of the legislature’s “unified and
comprehensive approach to comparative fault, apportionment of damages, and
contribution.” Jaswell Drill Corp. v. General Motors Corp., 129 N.H. 341, 34445 (1987). “The ‛Act Relative to Tort Reform and Insurance,’ Laws 1986, 227:2,
closely modeled the Uniform Comparative Fault Act, 12 U.L.A. 38-49 (Supp.
1987), in its treatment of comparative fault and apportionment of damages.”
DeBenedetto, 153 N.H. at 798. As originally enacted in 1986, RSA 507:7-e
required that judgment be entered against “each party liable” on the basis of
joint and several liability. Id.; see Laws 1986, 227:2. Under the rule of joint
and several liability, a defendant who is only minimally responsible for a
plaintiff’s injuries may be held responsible for the entire amount of recoverable
damages. DeBenedetto, 153 N.H. at 798.
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The joint and several liability rule enabled “injured plaintiffs to seek out
and sue only ‘deep pocket’ defendants – tortfeasors with significant assets but
a potentially low degree of fault who by virtue of joint and several liability may
be responsible for the entire amount of recoverable damages.” Id. at 798-99.
As a result, numerous jurisdictions enacted legislation to ameliorate the
inequities suffered by low fault, “deep pocket” defendants. Id. at 799.
New Hampshire followed this trend in 1989 when it amended RSA
507:7-e “to treat fairly those entities which may be unfairly treated” under joint
and several liability. Id. (quotation omitted); see N.H.S. Jour. 286 (1989).
Recognizing that “manufacturers, professional and public agencies . . . become
targets for damage recoveries because of their potential monetary resources
rather than their fault,” N.H.S. Jour. 286 (1989), the legislature amended RSA
507:7-e to impose only several liability on parties who are less than fifty
percent at fault. See RSA 507:7-e, I(b).
Following this amendment, we had occasion to consider whether RSA
507:7-e permits a jury to apportion fault between a settling tortfeasor and a
non-settling tortfeasor. See Nilsson v. Bierman, 150 N.H. 393, 395 (2003). In
Nilsson, the plaintiff argued that the plain and ordinary meaning of the word
“party,” as used in RSA 507:7-e, did not include a defendant who settled with
the plaintiff before trial. Id. at 396. We disagreed, holding that for
apportionment purposes, the word “party” refers to “parties to an action
including settling parties.” Id. (quotation and ellipsis omitted). We affirmed the
trial court’s verdict apportioning ninety-nine percent of fault to the settling
defendant and one percent of fault to the non-settling defendant. Id. at 394.
In Nilsson, we expressly declined to reach the issue of whether an
immune tortfeasor was a “party” for apportionment purposes. Id. at 397.
Relying upon the reasoning of courts in jurisdictions with comparative fault
and apportionment schemes similar to ours, we answered this question in the
affirmative in DeBenedetto. See DeBenedetto, 153 N.H. at 800-04. Our
decision in DeBenedetto was guided by the policy choice the legislature made
when it amended RSA 507:7-e in 1989 to require joint and several liability only
for those defendants who are fifty percent or more at fault. Id. at 799.
Specifically, we recognized that “true apportionment cannot be achieved unless
that apportionment includes all tortfeasors who are causally negligent by either
causing or contributing to the occurrence in question, whether or not they are
named parties to the case.” Id. at 800. Therefore, we held that “for
apportionment purposes under RSA 507:7-e, the word ‘party’ refers not only to
parties to an action, including settling parties, but to all parties contributing to
the occurrence giving rise to an action, including those immune from liability
or otherwise not before the court.” Id. at 804 (quotation, citation and ellipsis
omitted). We concluded “that a rule of law limiting a jury or court to
consideration of the fault of only the parties to an action would directly
5
undermine the New Hampshire legislature’s decision to assign only several
liability to those parties who are less than 50 percent at fault.” Id. at 803. We
have applied DeBenedetto in subsequent cases. See Everitt v. Gen. Elec. Co.,
156 N.H. 202 (2007); Goudreault v. Kleeman, 158 N.H. 236 (2009).
The legislature’s response to DeBenedetto, although not controlling, is
instructive. See Franklin v. Town of Newport, 151 N.H. 508, 512 (2004)
(subsequent legislative history, while not controlling, may be considered). In
2007, the legislature passed a bill that would have amended RSA 507:7-e to
define the word “party” to mean only those who were before the court when
damages were to be apportioned. See N.H.S. Jour. 1832-33 (2007); N.H.H.R.
Jour. 113 (2007). The Governor vetoed this legislation, however, and his veto
was sustained. See N.H.H.R. Jour. 1113, 1115 (2007).
In 2009 and 2010, legislation was introduced to accomplish the same
goal. See N.H.H.R. Rep. 875-76 (2009); N.H.H.R. Rep. 1145 (2010). The 2009
measure would have amended RSA 507:7-e to add a new paragraph under
which fault could be apportioned “only against parties to an action who are
before the court.” House Bill 197 (2009). The 2010 measure would have
specifically exempted immune entities from apportionment of damages. House
Bill 1255 (2010). Neither measure was passed by the New Hampshire House of
Representatives, see N.H.H.R. Rep. 876 (2009); N.H.H.R. Rep. 1145 (2010),
further evidencing the legislature’s intent that RSA 507:7-e apply to immune
non-parties as we held in DeBenedetto.
The failure of the 2009 legislation also reveals the legislature’s specific
intent that RSA 507:7-e applies to immune employers. See N.H.H.R. Rep. 87576 (2009). As amended by a legislative committee, the 2009 bill would have
“except[ed] the amount of damages attributed to the employer pursuant to the
apportionment of damages provisions under RSA 507:7-e from the employer’s
lien on damages and benefits recovered from third persons by employees who
have received workers’ compensation.” Id. at 876. Representative William L.
O’Brien, speaking on behalf of those opposed to the amendment, explained:
The change proposed by this amended legislation would violate a
fundamental premise of workers compensation law. It would do
this by essentially taking away the employers’ present immunity
from lawsuits given in exchange for the employers having to pay
set benefits for lost wages and medical costs for all workplace
injuries, even when the employer is not negligent, and with the
understanding that the employers’ insurers will get back those
payments if a third party’s negligence caused the accident.
Id. Another legislator attempted to amend the legislation to exempt immune
employers from apportionment under RSA 507:7-e. Id. This amendment failed
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and the entire measure was “laid on the table,” with no further action taken.
Id.
3. Whether DeBenedetto Applies to USPS
Against this backdrop, we now consider the plaintiff’s arguments as to
why DeBenedetto should not govern this case. The plaintiff does not argue
that we should overrule DeBenedetto; rather, in effect, he seeks an exception to
the holding in DeBenedetto that liability may be apportioned to immune nonparties.
a. Whether Immune Employers Should Be Treated
Differently
The plaintiff first argues that immune employers are different from other
immune tortfeasors and, thus, different rules should govern apportioning fault
to them. He observes that immune employers, unlike other immune
tortfeasors, have a statutory right to reimbursement from a plaintiff’s recovery
against another tortfeasor equal to the amount of benefits the employee
received under the applicable workers’ compensation law. See 5 U.S.C.A.
§ 8132; see also RSA 281-A:13, I(b) (2010) (under New Hampshire Workers’
Compensation Law, employers have a lien on damages recovered by employee,
less expenses and costs of action). He also notes that both the Federal Act and
the New Hampshire Workers’ Compensation Law (the State Act) allow and,
under certain circumstances, require an employee to bring an action against a
third party to recover damages. See 5 U.S.C.A. § 8132; see also RSA 281-A:13.
Because of these statutory provisions, he asserts that allowing a jury to
apportion fault to immune employers upsets the delicate balance of benefits
and burdens under workers’ compensation laws.
We disagree that apportioning fault to immune employers affects in any
way the benefits and burdens under either the Federal or State Act. Both acts
are based upon the fundamental quid pro quo of employer tort immunity in
exchange for no-fault workers’ compensation benefits. See Tothill v. Estate of
Center, 152 N.H. 389, 395 (2005) (discussing State Act); Lockheed Aircraft
Corp. v. United States, 460 U.S. 190, 193-94 (1983). Under both acts,
“employees are guaranteed the right to receive immediate, fixed benefits,
regardless of fault and without need for litigation, but in return they lose the
right to sue [their employer].” Lockheed Aircraft Corp., 460 U.S. at 194; see
Bilodeau v. Oliver Stores, Inc., 116 N.H. 83, 86 (1976).
Allocating fault to an immune employer does not disturb this quid pro
quo relationship between employee and employer or the legislative policy
underlying it. A plaintiff may still obtain benefits, without having to prove the
employer’s negligence, and the employer is still immune from liability. Indeed,
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“[t]o immunize employers from fault allocation in third-party tort suits would
go against the spirit of the bargain between employers and employees.” Mack
Trucks, Inc. v. Tackett, 841 So. 2d 1107, 1115 (Miss. 2003). As pointed out by
the Mississippi Supreme Court, if employers were immune from fault
allocation, “the third party would pay the employer’s cost of compensation, and
the employee would have the possibility of recovering in tort for his employer’s
fault, since that would then be allocated to the third party.” Id. “This certainly
would benefit employers, and to some extent plaintiffs -- but third parties
should not be assessed to supplement our system of workers’ compensation.”
Id. (emphasis added).
Contrary to the plaintiff’s assertions, allocating fault to an employer does
not destroy, or even affect, the employer’s immunity from suit. Immunity “does
not mean that a party is not at fault; it simply means that the party cannot be
sued.” Pinnacle Bank v. Villa, 100 P.3d 1287, 1293 (Wyo. 2004). Nor does it
affect an employee’s right to proceed against a third party. See Bilodeau, 116
N.H. at 87 (employee may proceed against a third party “based on the concept
that the ultimate loss from wrongdoing should fall upon the wrongdoer”).
The plaintiff’s arguments are based upon his mistaken assumption that
his statutory right to bring a third party action is intended to afford him full
recovery for his injuries. To the contrary, under the State Act, the employee’s
right to bring a third party action and the corresponding right of the employer
to be reimbursed from any recovery for the amount of compensation benefits
paid accomplish the legislative purpose of precluding “double recovery.” See
Rooney v. Fireman’s Fund Ins. Co., 138 N.H. 637, 640-41 (1994). Thus, an
injured worker “should not be allowed to keep the entire amount of both his
compensation award and his common law recovery which would amount to a
double recovery.” Bilodeau, 116 N.H. at 87. The purpose of analogous
provisions in the Federal Act is not only to prevent double recoveries, but also
to minimize the cost of the program to the federal government. United States v.
Lorenzetti, 467 U.S. 167, 177 (1984).
We are not persuaded that “fairness” dictates that a non-employer
defendant, such as FedEx in this case, should be responsible for paying a
plaintiff’s entire damage award, particularly when the non-employer is only
minimally at fault and the immune employer is nearly completely at fault. As
we observed in DeBenedetto, “[t]here is nothing inherently fair about a
defendant who is 10% at fault paying 100% of the loss, and there is no social
policy that should compel defendants to pay more than their fair share of the
loss.” DeBenedetto, 153 N.H. at 800 (quotation omitted).
More importantly, requiring FedEx to bear the entire cost of the plaintiff’s
damages would contravene the legislative intent of RSA 507:7-e, which “is to
protect minimally liable defendants.” Rodgers v. Colby’s Ol’ Place, 148 N.H. 41,
8
44 (2002). “[T]he legislative history of RSA 507:7-e plainly demonstrates that
an underlying purpose of the 1989 amendment was to relieve defendants
involved in personal injury lawsuits from damages exceeding their percentage
of actual fault.” DeBenedetto, 153 N.H. at 807. “Specifically, the legislature
sought to alleviate the burden imposed by joint and several liability upon ‘deep
pocket’ defendants targeted because of their financial resources rather than
their degree of culpability.” Id. “[T]o balance the interests of injured plaintiffs
with those of defendants bearing relatively low fault percentages,” the
legislature “reserved the joint and several liability rule for application to
tortfeasors fifty percent or more at fault.” Id.
To the extent that the plaintiff relies upon Tennessee law to argue that
immune employers should be exempt from apportionment under RSA 507:7-e,
his reliance is misplaced. Although we cited a Tennessee case in Nilsson and
DeBenedetto, see Carroll v. Whitney, 29 S.W.3d 14, 21 (Tenn. 2000), it was in
support of the observation that many jurisdictions allow apportionment to nonparties and that to apportion fault to non-parties is compatible with the
doctrine of comparative fault. See Nilsson, 150 N.H. at 396; DeBenedetto, 153
N.H. at 800. Indeed, in DeBenedetto, 153 N.H. at 800, 801, we cited with
approval two cases that stand for the proposition that all immune parties,
including employers, must be subject to apportionment of fault. See Mack
Trucks, Inc., 841 So. 2d at 1115; Northland Ins. Co. v. Truckstops Corp. of
America, 914 F. Supp. 216, 220 (N.D. Ill. 1995) (failure to include immune
employers in apportionment process violates main purpose of comparative fault
by subjecting defendants to liability in excess of their proportion of fault).
Thus, contrary to the plaintiff’s assertion, we do not conclude that
immune employers should be treated differently than other immune
tortfeasors.
b. Constitutional Claims
The plaintiff next contends that apportioning fault to the USPS violated
various of his state constitutional rights. First, he argues that including the
USPS in the apportionment of fault violated his due process rights under Part I,
Article 15 of the New Hampshire Constitution. FedEx argues that the plaintiff
has failed to preserve this claim for our review. We assume, without deciding,
that it was preserved, and address its merits.
The plaintiff argues that applying the apportionment of damages statute
to immune employers impermissibly reallocates the benefits and burdens
under workers’ compensation laws. His argument is based upon a line of cases
addressing the constitutionality of amendments to the State Act. See, e.g.,
Young v. Prevue Products, Inc., 130 N.H. 84, 86-88 (1987) (amendment barring
loss of consortium actions against employer by employee’s spouse was
9
constitutional); Rooney v. Fireman’s Fund Ins. Co., 138 N.H. 637, 642-43
(1994) (upholding constitutionality of amendment allowing employer’s insurer a
lien on claimant’s uninsured motorist benefits). In these cases, we held that
“there need not be a specific ‘give and take,’ or quid pro quo, each time a
workers’ compensation statute is amended.” Rooney, 138 N.H. at 642.
Instead, to determine whether the Due Process Clause of the State Constitution
has been violated, we consider “the totality of the benefits” allowed under the
State Act, and the “fairness of the compensation scheme as a whole.” Id.
(quotations omitted).
The plaintiff’s reliance upon this line of cases is misplaced. The instant
matter does not concern the legislature’s adjustment of benefits and burdens
under the State Act through its amendment. More importantly, as previously
noted, apportioning fault to immune employers does not disturb the balance of
benefits and burdens under workers’ compensation laws. Thus, apportioning
fault to an immune employer pursuant to RSA 507:7-e does not violate the due
process protection of the New Hampshire Constitution. See id.
The plaintiff next asserts that apportioning fault to the USPS violated his
right to equal protection under Part I, Articles 2 and 12 of the New Hampshire
Constitution. The plaintiff argues that RSA 507:7-e, I, “causes [injured
workers] . . . to be treated differently from other injury victims.” Relying upon
an equal protection test that we have overruled, see Carson v. Maurer, 120
N.H. 925, 932 (1980), overruled by Cmty. Res. for Justice v. City of
Manchester, 154 N.H. 748 (2007), the plaintiff articulates an equal protection
argument that is nearly identical to his third constitutional argument, which
he raises under Part I, Article 14 of the State Constitution. Because he makes
no argument under the equal protection test we currently use, see Cmty. Res.
for Justice, 154 N.H. at 762, we address only his argument under Part I, Article
14.
Part 1, Article 14 of the New Hampshire Constitution provides:
Every subject of this state is entitled to a certain remedy, by having
recourse to the laws, for all injuries he may receive in his person,
property, or character; to obtain right and justice freely, without
being obliged to purchase it; completely, and without any denial;
promptly, and without delay; conformably to the laws.
N.H. CONST. pt. I, art. 14. The purpose of this provision is to make civil
remedies available and to guard against arbitrary and discriminatory
infringements upon access to courts. DeBenedetto, 153 N.H. at 805.
The plaintiff argues that RSA 507-7:e, as applied to injured workers,
eliminates the right to a remedy guaranteed under our constitution. We
disagree. Contrary to his assertions, Part I, Article 14 “does not guarantee that
10
all injured persons will receive full compensation for their injuries.” Id.
(emphasis added); see Estate of Cargill v. City of Rochester, 119 N.H. 661, 665
(1979). It only requires a remedy that conforms to the statutory and common
law rights applicable at the time of the injury. Trovato v. Deveau, 143 N.H.
523, 525 (1999). RSA 507:7-e, as applied to injured workers, does not restrict
the statutory or common law rights available to injured employees. An injured
employee maintains the right to obtain workers’ compensation benefits under
either the Federal or State Act and to bring common law claims against third
party defendants.
We rejected a similar claim in DeBenedetto. There, we concluded that
apportioning fault to immune non-parties does not violate Part I, Article 14
because it does not “by its language, restrict a plaintiff’s right to seek a remedy
for personal injuries, limit a plaintiff’s ability to bring an action against any
party, or cap the amount of damages that a plaintiff may seek.” DeBenedetto,
153 N.H. at 805. Here, the plaintiff, like the plaintiff in DeBenedetto, is unable
to recover from an immune non-party – his employer. However, he is not
prevented from doing what he has done herein, which is to bring suit against a
third party defendant who bears responsibility for his injuries. He has not
been deprived of his right to a remedy under the New Hampshire Constitution.
The plaintiff’s final constitutional argument is that the application of RSA
507:7-e in this case violated the Supremacy Clause. The Supremacy Clause of
Article VI of the Federal Constitution gives Congress the power to preempt state
law. New Hampshire Health Care Assoc. v. Governor, 161 N.H. 378, 399
(2011). “Under the Supremacy Clause of the Federal Constitution, state law is
preempted where: (1) Congress expresses an intent to displace state law; (2)
Congress implicitly supplants state law by granting exclusive regulatory power
in a particular field to the federal government; or (3) state and federal law
actually conflict.” Id. (quotation omitted). “An actual conflict exists when it is
impossible for a private party to comply with both state and federal
requirements or where state law stands as an obstacle to the accomplishments
and execution of the full purpose and objective of Congress.” Id. (quotation
omitted).
The plaintiff contends that “[t]he invocation of employer fault on the
basis of a state statute would contradict the clear employer immunity created
in the . . . federal statute” and would “undermine” the statutory right “of federal
workers to third party actions and the federal government’s right to be
reimbursed for worker’s compensation benefits paid out of any third party
recovery.” Although the plaintiff couches his arguments as arising under the
Supremacy Clause, he merely reiterates arguments that we have already
addressed.
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B. Comparative Fault
The plaintiff’s second claim of error concerns the trial court’s failure to
award him any recovery against FedEx after it compared his percentage of fault
to FedEx’s percentage of fault pursuant to RSA 507:7-d, the comparative fault
statute. We review the trial court’s construction of RSA 507:7-d de novo. See
Kenison v. Dubois, 152 N.H. 448, 451 (2005).
RSA 507:7-d states:
Contributory fault shall not bar recovery in an action by any
plaintiff or plaintiff’s legal representative, to recover damages in
tort for death, personal injury or property damage, if such fault
was not greater than the fault of the defendant, or the defendants
in the aggregate if recovery is allowed against more than one
defendant, but the damages awarded shall be diminished in
proportion to the amount of fault attributed to the plaintiff by
general verdict. The burden of proof as to the existence or amount
of fault attributable to a party shall rest upon the party making
such allegation.
(Emphases added.)
The trial court reasoned that recovery was not permitted against the
USPS due to its status as an immune party, and therefore that the USPS’s fault
could not be aggregated with FedEx’s fault. Accordingly, because the jury
determined FedEx’s fault to be four percent and the plaintiff’s to be six percent
(and, thus, greater than FedEx’s fault), the trial court entered judgment on
FedEx’s behalf. This was error.
Generally, when construing statutes we first examine the language used,
and, where possible, we ascribe the plain and ordinary meanings to words
used. In re Keelin B., 162 N.H. ___, ___ (decided May 12, 2011). Nevertheless,
we interpret statutes in the context of the overall statutory scheme and not in
isolation. Appeal of Wilson, 161 N.H. 659, 662 (2011). “In so doing, we are
better able to discern the legislature’s intent, and therefore better able to
understand the statutory language in light of the policy sought to be advanced
by the entire statutory scheme.” Id. (quotation omitted). We will not interpret
a statute to effectuate an unjust result. See In re Alex C., 161 N.H. 231, 235
(2010).
We cannot construe the words “defendant” and “party” in RSA 507:7-d in
isolation, but must construe them both in the context of the overall statutory
scheme, In re Keelin B., 162 N.H. at ___, and in light of the policy the
legislature sought to advance through that scheme, see Appeal of Wilson, 161
12
N.H. at 662. In DeBenedetto, we interpreted the word “party” as used in the
apportionment of fault statute, RSA 507:7-e (the companion statute to the
comparative fault statute, RSA 507:7-d), to refer to “all parties contributing to
the occurrence” giving rise to a plaintiff’s injuries. DeBenedetto, 153 N.H. at
804. The term “party,” therefore, as used in RSA 507:7-e, is not limited to
“those individuals or entities who are plaintiffs or defendants in the action.” Id.
(quotation omitted).
Because RSA 507:7-d and RSA 507:7-e are part of an integrated
statutory scheme, the word “party” in RSA 507:7-d must have the same
meaning as it has in RSA 507:7-e. “Words used with plain meaning in one part
of a statute are to be given the same meaning in other parts of the statute
unless a contrary intention is clearly shown.” Appeal of Int’l Bhd. of Police
Officers, 148 N.H. 194, 195 (2002) (quotation omitted). Thus, in RSA 507:7-d,
as in RSA 507:7-e, the word “party” means the parties to the transaction or
occurrence giving rise to the plaintiff’s injuries. See DeBenedetto, 153 N.H. at
803, 804. We note that unlike RSA 507:7-e, RSA 507:7-d was not amended in
1989. Its use of the term “defendants” dates back to a time when
apportionment of fault was not allowed against non-parties. See RSA 507:7-e
(1986). In light of the 1989 amendment to RSA 507:7-e and our subsequent
case law interpreting that amendment, the word “defendant” as used in RSA
507:7-d, therefore, cannot be limited to the named defendants in the plaintiff’s
suit, but must include any tortfeasor found to have caused the plaintiff’s
injuries. See DeBenedetto, 153 N.H. at 803, 804.
Moreover, because RSA 507:7-d is the companion statute to RSA 507:7e, we conclude that the aggregation of fault described in RSA 507:7-d includes
the fault of all entities to whom fault has been apportioned, regardless of
whether any are immune from liability. It follows that the phrase “defendants
in the aggregate if recovery is allowed against more than one defendant,” as
used in RSA 507:7-d, applies to all entities whose fault has been apportioned
under RSA 507:7-e. Accordingly, it was error for the trial court not to
aggregate FedEx’s fault with the fault of the USPS because both FedEx and the
USPS were parties to the occurrence that gave rise to the plaintiff’s injuries and
fault was apportioned to them both. See id. at 803, 804.
To construe RSA 507:7-d otherwise would render it incompatible with
RSA 507:7-e. If we were to construe the words “party” and “defendant” to refer
only to the defendant named in a plaintiff’s civil suit, a defendant could have
fault apportioned to an immune party under the apportionment statute, RSA
507:7-e, but could then shield itself from liability for any damages under the
comparative fault statute, RSA 507:7-d, even where it is a wrongdoer. Such a
construction would undermine the purpose underlying RSA 507:7-d, which is
to “allocate more equitably the responsibility for injuries due to negligent
conduct on the part of parties on both sides of a lawsuit.” Allen v. Dover Co-
13
Recreational Softball League, 148 N.H. 407, 412 (2002) (quotation omitted).
We cannot conclude that the legislature intended such an unjust result. See
Residents Defending Their Homes v. Lone Pine Hunter’s Club, 155 N.H. 486,
489 (2007). Accordingly, we hold that RSA 507:7-d and RSA 507:7-e must be
construed together: Under the apportionment statute, RSA 507:7-e, fault may
be apportioned to an immune entity; under the comparative fault statute, RSA
507:7-d, any fault attributed to the immune entity must be aggregated with the
fault attributed to any other tortfeasor.
Here, the trial court should have aggregated the USPS’s fault (ninety
percent) with FedEx’s fault (four percent) for the purpose of determining
whether the plaintiff’s fault (six percent) barred him from recovery. See RSA
507:7-d. Because the plaintiff’s fault is less than the aggregated fault of the
USPS and FedEx, he is not barred from recovery, see id.; however, because
FedEx is less than fifty percent at fault, the plaintiff’s damages are limited to
the damages attributable to FedEx, see RSA 507:7-e, I(b), which is four percent
of the total damages found by the jury. Thus, judgment should have been
awarded in the plaintiff’s favor against FedEx in the amount of four percent of
the total damages found by the jury ($1,445,700); that is, in the amount of
$57,828, plus statutory interest and allowable costs.
As the dissent concedes, DeBenedetto is dispositive of the issue before
us. Nevertheless, the dissent urges us to overrule DeBenedetto a mere five
years after it was decided, and despite the fact that the plaintiff makes no such
request.
“We do not lightly overrule a prior opinion.” State v. Duran, 158 N.H.
146, 153 (2008). “The doctrine of stare decisis demands respect in a society
governed by the rule of law, for when governing legal standards are open to
revision in every case, deciding cases becomes a mere exercise of judicial will
with arbitrary and unpredictable results.” Jacobs v. Director, N.H. Div. of
Motor Vehicles, 149 N.H. 502, 504 (2003) (quotations omitted). Several factors
inform our judgment as to whether a decision should be overruled, including:
(1) whether the rule has proven to be intolerable simply in defying practical
workability; (2) whether the rule is subject to a kind of reliance that would lend
a special hardship to the consequences of overruling; (3) whether related
principles of law have so far developed as to have left the old rule no more than
a remnant of abandoned doctrine; and (4) whether facts have so changed, or
come to be seen so differently, as to have robbed the old rule of significant
application or justification. Id. at 505; see Planned Parenthood of
Southeastern Pa. v. Casey, 505 U.S. 833, 854-55 (1992).
Upon consideration of all of these factors, we cannot conclude that
overruling DeBenedetto is warranted. Permitting a jury to consider
“nonparties,” such as immune tortfeasors, when apportioning fault is neither
14
an “abandoned doctrine,” nor impractical or unworkable. To the contrary, as
noted above, such is the rule in many jurisdictions. Moreover, the underlying
rationale for such a rule is that true apportionment cannot be achieved unless
that apportionment includes all tortfeasors who are causally negligent by
causing or contributing to the occurrence in question, whether or not they are
named parties to the case. See Lasselle v. Special Products Co., 677 P.2d 483,
485 (Idaho 1984).
The dissent makes no argument specifically directed to any of the Jacobs
factors. Instead, it contends that our ruling in DeBenedetto is
“unconstitutional” in that it violates substantive due process. In support of
this contention the dissent cites Plumb v. Fourth Jud. Dist. Court, 927 P.2d
1011, 1021 (Mont. 1996), for the proposition that apportioning fault to
nonparties is not rationally related to a legitimate governmental issue. We find
more persuasive the reasoning of Haff v. Hettich, 593 N.W.2d 383 (N.D. 1999),
in which the court concluded that a statute requiring apportionment of
damages, based upon actual fault, regardless of whether the tortfeasor was
named as a party, was rationally related to “the legitimate legislative goal of
improving the method of determining and fixing responsibility for fault and
damages.” Id. at 390. RSA 507:7-e is not arbitrary, unreasonable, or
discriminatory; nor, as previously discussed, does it infringe upon a plaintiff’s
substantive right to recovery. See id. at 390. As in Smiley v. Corrigan, 638
N.W.2d 151, 154 n.7 (Mich. Ct. App. 2001), we too can “find no logical basis to
conclude that evidence regarding the culpability of all tortfeasors involved in an
incident will render the jury’s verdict less accurate, as the Plumb Court
appeared to conclude.”
Neither are we persuaded by the dissent that DeBenedetto should be
overruled on the basis of its interpretation of the relevant statutes. As we have
explained, we interpret a statute to lead to a reasonable result and review a
particular provision, not in isolation, but together with all associated sections.
See Appeal of Thermo-Fisher Scientific, 160 N.H. 670, 672 (2010). For this
reason we cannot permit a construction that would undermine the purpose
underlying our comprehensive statutory framework for comparative fault,
apportionment of liability, and contribution – that is, “to treat fairly those
entities which may be unfairly treated” under the rule of joint and several
liability. N.H.S. Jour. 286 (1989); see also Nilsson, 150 N.H. at 395
(comprehensive statutory framework includes RSA 507:7-d through RSA
507:7-i); Allen, 148 N.H. at 412-13 (noting that RSA 507:7-d also serves to
“allocate more equitably the responsibility for injuries due to negligent conduct
on the part of parties on both sides of a lawsuit”). Moreover, as the dissent
aptly notes, stare decisis has special force when statutory interpretation is
concerned. See Hilton v. South Carolina Public Railways Comm’n, 502 U.S.
15
197, 205 (1991). For these reasons, we decline the dissent’s invitation to
overrule DeBenedetto.
Affirmed in part; reversed in
part; and remanded.
DUGGAN, J., concurred; BROCK, C.J., retired, specially assigned under
RSA 490:3, dissented.
BROCK, C.J., retired, specially assigned under RSA 490:3, dissenting.
The plaintiff, Alfred Ocasio, appeals from the entry of a judgment in favor of the
defendant, Federal Express Corporation (FedEx). Because of the trial court’s
decision, the plaintiff received nothing, despite an award of $1.4 million by the
jury. In my view, this fundamentally unfair result should not be allowed to
stand. Respectfully, I dissent.
The plaintiff was a mail handler for the United States Post Office (USPS).
His job included removing mail that was transported in large, heavy containers
known as “air cans.” On February 17, 2002, the plaintiff was gravely injured
while removing air cans from a FedEx tractor trailer truck driven by Adam
Thompson. Thompson backed his truck up to the loading and receiving dock
and secured his vehicle. Although he thought that the back of the truck was
properly aligned with the loading dock, there was, in fact, a gap between the
truck and the loading dock. While pulling an air can from the FedEx truck
with another employee, the plaintiff’s right leg dropped into the gap, and the air
can rolled into his leg, shattering it. Although the plaintiff’s leg was saved after
reconstructive surgery, it is of limited use. He cannot stand or walk for very
long; he cannot lift and carry heavy things; and he cannot run. He has since
lost his job at the USPS.
The issue on appeal is whether the trial court erred in two respects:
first, when it instructed the jury to apportion fault to the USPS, even though
the USPS was not a named party in the lawsuit and was immune from liability
under the Federal Employees’ Compensation Act, see 5 U.S.C.A. § 8116(c)
(2007); and, again, when it ruled that the plaintiff could not recover against
FedEx because the jury found that he was more at fault than FedEx, see RSA
507:7-d (2010). Because I believe that the trial court should not have required
the jury to apportion fault to the USPS and because this error would
necessitate a new trial, I address only this error.
The trial court, understandably, relied upon this court’s decision in
DeBenedetto when it instructed the jury to apportion fault to the USPS. See
DeBenedetto v. CLD Consulting Eng’rs, 153 N.H. 793 (2006). At issue in
DeBenedetto was whether the trial court had erred when it instructed the jury
to apportion fault to two non-parties. Id. at 797. One non-party, Doris
16
Christous, was the driver of the car that collided with the plaintiff’s husband’s
car. Id. at 795. Christous’s insurance carrier paid upon demand, and
Christous was not named as a defendant in the plaintiff’s subsequent lawsuit.
Id. The other non-party was the New Hampshire Department of Transportation
(DOT), which was a named defendant, but which was dismissed before trial on
grounds of immunity. Id.
The plaintiff argued that the trial court’s instruction to the jury to
include Christous and the DOT when apportioning fault violated the plain
language of RSA 507:7-e, I(a) (2010). Id. at 797. RSA 507:7-e (2010) provides,
in pertinent part:
I. In all actions, the court shall:
(a) Instruct the jury to determine, or if there is no jury shall
find, the amount of damages to be awarded to each claimant and
against each defendant in accordance with the proportionate fault
of each of the parties; and
(b) Enter judgment against each party liable on the basis of the
rules of joint and several liability, except that if any party shall be
less than 50 percent at fault, then that party’s liability shall be
several and not joint and he shall be liable only for the damages
attributable to him.
RSA 507:7-e, I(a), (b) (emphasis added).
The plaintiff argued that the words “party” or “parties,” as used in RSA
507:7-e, I, referred only to the actual parties to the action. DeBenedetto, 153
N.H. at 800. The court disagreed, and construed the terms to refer to anyone
who contributed to the plaintiff’s loss, including unnamed and immune parties.
Id. at 798, 803. In so doing, I believe that the court erred and, had I
participated, I would have dissented. Because the error is of constitutional
dimension, I believe that DeBenedetto should be overruled.
“The doctrine of stare decisis demands respect in a society governed by
the rule of law, for when governing legal standards are open to revision in every
case, deciding cases becomes a mere exercise of judicial will with arbitrary and
unpredictable results.” Jacobs v. Director, N.H. Div. of Motor Vehicles, 149
N.H. 502, 504 (2003) (quotations omitted). Thus, when asked to reconsider a
previous holding, we do not decide the issue de novo; rather, we review
“whether the ruling has come to be seen so clearly as error that its enforcement
was for that very reason doomed.” Id. at 504-05 (quotation omitted). “While we
recognize the value of stability in legal rules,” however, “the doctrine of stare
17
decisis is not one to be either rigidly applied or blindly followed. The stability of
the law does not require the continuance of recognized error.” Matarese v. N.H.
Mun. Assoc. Prop.-Liab. Ins. Trust, 147 N.H. 396, 400 (2002) (quotations
omitted). Particularly when, as in this case, the error is of constitutional
dimension, I believe that the policies in favor of departing from precedent far
outweigh those in favor of following stare decisis. See Hilton v. South Carolina
Public Railways Comm’n, 502 U.S. 197, 205 (1991) (recognizing that stare
decisis has special force when statutory interpretation is concerned, but less so
when constitutional interpretation is concerned). Here, “justice demands and
reason dictates that a change be made.” Dean v. Smith, 106 N.H. 314, 318
(1965).
Because it was not argued on appeal, the court in DeBenedetto did not
consider whether interpreting RSA 507:7-e, I(a), (b), to require a jury to
apportion liability to, and the court to enter judgment against, non-parties
violated substantive due process. In my opinion, it does.
I first address the constitutionality of RSA 507:7-e, I, as interpreted in
DeBenedetto, under the State Constitution, see State v. Ball, 124 N.H. 226,
231 (1983), citing federal opinions for guidance only, see id. at 232-33.
“[S]ubstantive due process prevents the government from engaging in
conduct that shocks the conscience, or interferes with rights implicit in the
concept of ordered liberty.” State v. Furgal, 161 N.H. 206, 213 (2010)
(quotation omitted); see United States v. Salerno, 481 U.S. 739, 746 (1987).
When, as in this case, the interest at stake is not a fundamental right, see
Carson v. Maurer, 120 N.H. 925, 931 (1980) (right to recover for personal
injuries is an important substantive right, but is not a fundamental right),
overruled on other grounds by Cmty. Res. for Justice v. City of Manchester,
154 N.H. 748 (2007), the court applies the rational basis test. See State v.
Haas, 155 N.H. 612, 613 (2007); see also Medeiros v. Vincent, 431 F.3d 25, 32
(1st Cir. 2005). The rational basis test under the State Constitution requires
that legislation be rationally related to a legitimate governmental interest.
McKenzie v. Town of Eaton Zoning Bd. of Adjustment, 154 N.H. 773, 778
(2007).
I agree with the conclusion in DeBenedetto that apportioning liability
among those responsible for a plaintiff’s damages may involve a legitimate
governmental interest. See DeBenedetto, 153 N.H. at 807-09. I believe,
however, that apportioning liability to non-parties, who are not named in a
lawsuit and have no opportunity to defend themselves, is not rationally related
to this legitimate governmental interest. See Plumb v. Fourth Jud. Dist. Court,
927 P.2d 1011, 1021 (Mont. 1996). A plaintiff’s right to recover the amount of
damages for which a defendant is truly proportionally responsible is
jeopardized by the potential for disproportionately assigning liability to
18
disinterested, unnamed, unrepresented and non-participating third parties.
See id. at 1020. Non-parties, who may lack legal standing and are “[w]ithout
the opportunity to appear and defend themselves, . . . are likely to be assigned
a disproportionate share of liability.” Id. In the instant case, for example,
although the USPS was not named and had no ability to defend itself, the jury,
nonetheless, found that it was ninety percent at fault for the plaintiff’s injuries.
Moreover, “[t]he greater the degree of fault that is assigned to [a]
nonpart[y], the greater the reduction in the [plaintiff’s] recovery.” Id. Under
RSA 507:7-e, I(b), each party is jointly and severally liable for the plaintiff’s
damages, unless the party is less than fifty percent at fault. In that case, the
party’s liability is several only and the party is liable “only for the damages
attributable to him.” RSA 507:7-e, I(b). In this case, had FedEx been found
fifty percent or more at fault, FedEx would have been jointly and severally
liable for the entire $1.4 million verdict. Because, however, the jury was
instructed to apportion fault to the USPS, it found that FedEx was only four
percent at fault.
I believe that apportioning liability to an immune employer, who also has
a statutory right to receive a portion of any recovery the plaintiff may obtain
from a third party, is particularly not rationally related to the State’s legitimate
objective of fairly apportioning liability among parties. See 5 U.S.C.A. § 8132
(2007) (under Federal Employees’ Compensation Act, if beneficiary entitled to
compensation from United States for injury or death to employee receives
money or other property as a result of suit or settlement, after deducting
therefrom the costs of suit and a reasonable attorney’s fee, beneficiary must
refund to United States the compensation United States paid); RSA 281-A:13,
I(b) (2010) (under New Hampshire Workers’ Compensation Law, employer or its
carrier has lien on amount of damages recovered by employee from another
person, less expenses and costs of action). In such a case, the plaintiff’s
recovery from a third-party tortfeasor is unjustifiably reduced twice, once
because the jury has been allowed to apportion fault to the immune employer,
and again because the immune employer must be reimbursed from whatever
recovery the plaintiff receives from the third party. See Best v. Taylor Mach.
Works, 689 N.E.2d 1057, 1083-84 (Ill. 1997). In such a case, the plaintiff may
be effectively denied any meaningful recovery.
For the above reasons, therefore, I conclude that interpreting RSA 507:7e, I, to require apportionment of fault or liability to non-parties violates
substantive due process under the New Hampshire Constitution. Accordingly,
I need not consider whether it also would violate the Federal Constitution. See
Ball, 124 N.H. at 237.
Furthermore, in my view, not only is the DeBenedetto court’s
interpretation of RSA 507:7-e, I, unconstitutional, it is also wrong as a matter
19
of statutory interpretation. This court is the final arbiter of the intent of the
legislature as expressed in the words of the statute considered as a whole.
Coan v. N.H. Dep’t of Env’t Servs., 161 N.H. 1, 5 (2010). The court first
examines the language of the statute, and, where possible, ascribes the plain
and ordinary meanings to the words used. Id. It reviews the trial court’s
statutory interpretation de novo. Id. Statutes, such as RSA 507:7-e, I, which
are in derogation of the common law right to recover, are to be strictly
construed. See id.; see also Goudreault v. Kleeman, 158 N.H. 236, 253-55
(2009).
In my opinion, the plain and ordinary meaning of the words “party” and
“parties” as used in RSA 507:7-e, I, is confined to litigants -- those who are
currently or have been previously before the court in a particular action -- and
does not extend to non-parties. RSA 507:7-e, I(a) specifically refers to the
“amount of damages to be awarded to each claimant and against each
defendant in accordance with the proportionate fault of each of the parties.”
(Emphases added.) Thus, as used in RSA 507:7-e, I(a), the word “parties”
refers to “each claimant” and “each defendant.” RSA 507:7-e, I(b) instructs a
trial court to “[e]nter judgment against each party.” (Emphasis added.) A court
cannot enter judgment against a non-party. Accordingly, as used in RSA
507:7-e, I(b), the word “party” must also refer to each claimant and each
defendant.
Other sections of RSA 507:7-e further evince this legislative intent. For
instance, like RSA 507:7-e, I(b), RSA 507:7-e, I(c) also refers to granting
“judgment against . . . parties.” Additionally, RSA 507:7-e, II directs that “the
damages attributable to each party shall be determined by general verdict,
unless the parties agree otherwise” and cautions that questions to the jury
must be clear and concise “and shall not prejudice the rights of any party to a
fair trial.” (Emphasis added.) Necessarily, only a litigant can agree or disagree
as to the form of the verdict slip presented to the jury, and only a litigant has a
right to a fair trial. The language used throughout RSA 507:7-e, strictly
interpreted, makes clear that for apportionment purposes, the words “party”
and “parties” refer only to the parties to the action. See Bradford v. Herzig, 638
A.2d 608, 612 (Conn. App. Ct. 1994).
Because I believe that DeBenedetto should be overruled, and that RSA
507:7-e, I, should not be interpreted to require apportionment of liability to
non-parties, I would hold that the trial court erred by instructing the jury to
apportion liability to the USPS. I would therefore vacate and remand for a new
trial on liability only. As there has been no appellate challenge to the amount
of the jury verdict, a new trial on damages would not be required.
In conclusion, it is my view that the substantial statutory and
constitutional issues that have arisen in the wake of the legislature’s adoption
20
of RSA 507:7-e, I, have led the court into a jungle of unanticipated and,
perhaps, unintended consequences. Plaintiffs’ rights to a fair recovery have
been greatly diminished in the process.
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