David R. v. The Positive Safety Manufacturing Company
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2001 WI 82 SUPREME COURT OF WISCONSIN Case No.: 99-0431 Complete Title of Case: David R. and Eva Matthies, Plaintiffs-Respondents, v. The Positive Safety Manufacturing Company, Defendant-Appellant, ARB Insurance Company, Safety Supply and Design, Inc., f/k/a Wardco, GHI Insurance Company and The Travelers Insurance Company, Defendants. ON CERTIFICATION FROM THE COURT OF APPEALS Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: July 2, 2001 January 30, 2001 Circuit Calumet Donald A. Poppy JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: For the defendant-appellant there were briefs by Erik J. Pless and Everson, Whitney, Everson & Brehm, S.C., Green Bay, and John J. Bullaro, Jr., James R. Branit and Bullaro & Carton, Chicago, Illinois, and oral argument by James R. Branit. For the plaintiffs-respondents there was a brief by R. George Burnett and Liebmann, Conway, Olejniczak & Jerry, S.C., Green Bay, and oral argument by R. George Burnett. An amicus curiae brief was filed by William C. Gleisner, III, and Law Offices of William C. Gleisner, Milwaukee, and Rhonda L. Lanford and Habush, Habush, Davis & Rottier, S.C., Madison, on behalf of the Wisconsin Academy of Trial Lawyers. An amicus curiae brief was filed by Richard L. Zaffiro, Brookfield, on behalf of the Civil Trial Counsel of Wisconsin. 2 2001 WI 82 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 99-0431 STATE OF WISCONSIN : IN SUPREME COURT David R. and Eva Matthies, Plaintiffs-Respondents, FILED v. JUL 2, 2001 The Positive Safety Manufacturing Company, Cornelia G. Clark Clerk of Supreme Court Madison, WI Defendant-Appellant, ARB Insurance Company, Safety Supply and Design, Inc., f/k/a Wardco, GHI Insurance Company and The Travelers Insurance Company, Defendants. APPEAL from an order of County, Donald A. Poppy, Judge. ¶1 N. PATRICK CROOKS, J. the Circuit Court for Calumet Affirmed. On August 22, 1992, David R. Matthies' hand was injured by a punch press. At the time of the accident, joint and several liability was a common-law rule in Wisconsin which permitted a plaintiff to recover his or her damages from any one of two or more persons whose joint or concurring negligent acts caused the plaintiff's injury. No. 99-0431 Wisconsin Natural Gas Co. v. Ford, Bacon & Davis Constr. Corp., 96 Wis. 2d 314, 330-31, 291 N.W.2d 825 (1980) (quoting Kingston v. Chicago & N.W. Ry. Co., 191 Wis. 610, 613, 211 N.W. 913 (1927)). After Matthies' accident, but before he filed this action, the legislature modified joint and several liability. The legislature modified the doctrine by amending the statute on contributory negligence, Wis. Stat. § 895.045, to limit joint and several liability to a person found 51% or more causally negligent.1 action, the Safety), press, 1995 Wis. Act 17, § 1. Positive the manufacturer sought renumbered, Safety a Manufacturing of a declaratory Wis. Stat. Matthies' claims; and, Positive Safety's safety order § 895.045(1) as applied, liability After Matthies filed this to only Company device that, for as the punch amended (1995-96),2 § 895.045(1) that (Positive amount and applied to would limit of causal negligence the jury would attribute to Positive Safety. Calumet County Circuit Judge Donald A. Poppy declined to enter the order Positive Safety sought, and, instead, declared § 895.045(1) unconstitutional in its retroactive application to this instant action. This order was taken up by the court of appeals, which, in turn, certified its appeal to this court. 1 Causal negligence is that negligence which is a substantial factor in causing the injuries or damage. See Merco Distrib. Corp. v. Commercial Police Alarm Co., 84 Wis. 2d 455, 459, 267 N.W.2d 652 (1978). 2 All subsequent references to the Wisconsin Statutes are to the 1995-96 volumes unless otherwise indicated. 2 No. ¶2 99-0431 The circuit court correctly determined that Wis. Stat. § 895.045(1) this case. is unconstitutional if retroactively applied in According to the test this court adopted in Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995), to determine the constitutionality retroactive of application Retroactively applying retroactively of applying § 895.045 § 895.045(a) is to a statute, unconstitutional. this action would adversely impact Matthies' right to recover all of the damages adjudged outweighs due any to him and public this benefit adverse that retroactively applying § 895.045(1). impact would be substantially gained from We thus affirm the circuit court. I ¶3 The pertinent facts are not in dispute. Matthies was a machine operator at Mirro-Foley Company in Chilton, Wisconsin. On August 22, 1992, while operating a punch press, Matthies' left hand was severely injured. submitted to the trial court, According to medical records parts of four fingers were severed. ¶4 On July 19, 1995, David Matthies and his wife, Eva Matthies, filed their complaint, in which David Matthies brought claims of common-law negligence and strict liability.3 Matthies brought these claims against Positive Safety, as well as AllenBradley Company, Inc., the manufacturer of the foot pedal used 3 Eva Matthies' claim for loss of society and companionship is not at issue. 3 No. to start the press, and E.W. Bliss Company, 99-0431 Inc., the manufacturer of the punch press.4 ¶5 Matthies' complaint alleges that he was operating the punch press using a foot pedal and a pull-back device. A pull- back device is a harness that, if operating correctly, pulls back the machine operator so that the operator's hand cannot be caught in the punch press at the point where the press pinches the metal. The complaint also alleges that Positive Safety, the manufacturer of the pull-back caused Matthies' injuries because, alia, inter the pull-back was ineffective, or defective and unreasonably dangerous. ¶6 On February 2, 1998, Positive Safety moved for a declaratory order that (1) Wis. Stat. § 895.045(1) applies to Matthies' strict liability claim; and (2) that Positive Safety's liability, if any, would be limited to only that portion of total causal negligence Positive Safety.5 that the jury would attribute to Positive Safety argued that if Mirro-Foley is found most at fault, Positive Safety would not be liable for 4 In August 1996, the Matthies settled with Allen-Bradley, E.W. Bliss, and their insurers, and they were dismissed from the lawsuit with prejudice. 5 We address the applicability of Wis. Stat. § 895.045(1) to strict products liability claims in a case also mandated today, Fuschsgruber v. Custom Accessories, Inc., 2000 WI 81, ___ Wis. 2d ___, ___N.W.2d ___. In Fuchsgruber, we hold that § 895.045(1) does not apply to strict products liability claims. Id. at ¶¶1, 30. That holding applies here, and, consequently, there is no need to address the parties' contentions regarding § 895.045's applicability to strict products liability claims. This court's decision here applies to Matthies' common-law negligence claim. 4 No. Matthies' entire damages under the former rule of 99-0431 joint and several liability; rather, Positive Safety's liability would be limited by § 895.045(1). Matthies sought a declaration that retroactive application of § 895.045(1) is unconstitutional. ¶7 On January 29, 1999, the circuit court concluded that retroactive application of Wis. Stat. § 895.045(1) to this case is unconstitutional. Positive Safety sought interlocutory review of the circuit court's order, and Matthies joined in that request. The court of appeals granted leave for appeal of the court's order pursuant to § 808.03(2).6 Then, pursuant to Wis. Stat. Rule 809.61,7 the court of appeals certified the appeal to this court. II 6 Wisconsin Stat. § 808.03(2) provides: (2) APPEALS BY PERMISSION. A judgment or order not appealable as a matter of right under sub. (1) may be appealed to the court of appeals in advance of a final judgment or order upon leave granted by the court if it determines that an appeal will: (a) Materially advance the termination of the litigation or clarify further proceedings in the litigation; (b) Protect the petitioner from substantial or irreparable injury; or (c) Clarify an issue of general importance in the administration of justice. 7 Wisconsin Stat. (Rule) § 809.61 provides in pertinent part: The supreme court may take jurisdiction of an appeal or other proceeding in the court of appeals upon certification by the court of appeals or upon the supreme court's own motion. 5 No. ¶8 Matthies 99-0431 The legislature enacted 1995 Wisconsin Act 17 before filed his complaint, but after his accident. 1995 Wisconsin Act 17 amended Wis. Stat. § 895.045 as follows: Section 1. 895.045 of the statutes is renumbered 895.045(1) and amended to read: 895.045(1) (title) COMPARATIVE NEGLIGENCE. Contributory negligence shall does not bar recovery in an action by any person or the preson's person's legal representative to recover damages for negligence resulting in death or in injury to person or property, if such that negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable attributed to the person recovering. The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent. The liability of each person found to be causally negligent whose percentage of causal negligence is less than 51% is limited to the percentage of the total causal negligence attributed to that person. A person found to be causally negligent whose percentage of causal negligence is 51% or more shall be jointly and severally liable for the damages allowed. ¶9 Wisconsin Stat. § 895.045's predecessor, § 331.045, changed the common law rule of contributory negligence that had existed since the beginning of Wisconsin's jurisprudence. A plaintiff's a contributory negligence, of any amount, complete defense and barred the plaintiff's recovery. v. Ludtke, 211 Wis. 344, 247 N.W. 449 (1933). legislature adopted Wis. Stat. § 331.045, was Brewster In 1931, the which permitted recovery where a plaintiff's negligence is "not as great as the negligence of the person against whom recovery is sought." 242, Laws of 1931. Ch. Under § 331.045, "a plaintiff who is charged 6 No. 99-0431 with 49 percent of the total negligence recovers 51 percent of his [or her] damage, while one who is charged with 50 percent recovers nothing." Lupie v. Hartzheim, 54 Wis. 2d 415, 416, 195 N.W.2d (citing 461 (1972) Vincent v. Wis. 2d 120, 177 N.W.2d 513 (1970)). Pabst Brewing Co., 47 In 1971, the legislature modified the comparative negligence standard to permit recovery where than" the negligence of the person against whom recovery is sought. Ch. 47, a plaintiff's Laws of negligence 1971. "Under is not this "greater statutory modification, plaintiffs found 50 percent negligent will be able to recover 50 percent of their damages from a defendant who is found to be Lupie, 54 Wis. 2d at 417. equally at fault." comparative negligence standard we have in This is the Wisconsin today. Wis. Stat. § 895.045(1). ¶10 Some cases only involve one tortfeasor, and so, the negligence is divided, if appropriate, between the two. Where cases involve multiple tortfeasors, "this court has repeatedly interpreted the comparative providing that the plaintiff and multiple negligence comparison of statute negligence tort-feasors as clearly between involves a the separate comparison between the plaintiff and each of the defendants." Soczka v. Rechner, 73 Wis. 2d 157, 164, 242 N.W.2d 910 (1976). The legislature sentence that appears it added to address to Wis. this Stat. rule in the § 895.045(1): first "The negligence of the plaintiff shall be measured separately against 7 No. 99-0431 the negligence of each person found to be causally negligent."8 1995 Wis. Act 17, § 1. cannot be greater than Given that a plaintiff's negligence the person against whom recovery is sought, a plaintiff's negligence cannot exceed the negligence of any one of the defendants, against that defendant. or the plaintiff cannot Wis. Stat. § 895.045(1). recover Where there are multiple defendants, the percentage of negligence that is allocated to each of the defendants found causally negligent cannot be combined to establish that the defendants' negligence is equal to or greater than the plaintiff's. Ford, Bacon & Davis, 96 Wis. 2d at 326-27; Mariuzza v. Kenower, 68 Wis. 2d 321, 325, 228 N.W.2d 702 (1975). Even where multiple defendants may be jointly and severally liable, a plaintiff cannot recover from any one of them unless the plaintiff's negligence is "not greater than" each of the defendants' negligence. § 895.045(1). Wis. Stat. For example, if a plaintiff is found to be 40% negligent and one joint defendant 39% negligent, and the other 21%, the plaintiff cannot recover. ¶11 Joint and several liability among multiple tortfeasors has long been a common-law rule in Wisconsin and predates the adoption of the comparative negligence statute. See Kingston, 191 Wis. at 613. 8 The parties do not dispute the constitutionality of this part of the amendments to Wis. Stat. § 895.045 made by 1995 Wis. Act 17. Accordingly, we do not now make any determination as the constitutionality of this provision. 8 No. 99-0431 The doctrine was initially applied at common law to situations where there was a concert of action or breach of a joint duty on the part of multiple tortfeasors. Thus, persons who acted in concert or breached a common duty causing injury were considered to be joint tortfeasors and each could be held liable for the entire amount of the damages. Later, the doctrine was extended to cases where a plaintiff sustained an indivisible injury, harm or damage as a result of the independent, separate, but concurring tortious acts of two or more persons. "When two actors negligently conduct themselves so as to injure another, they become jointly and severally liable to the other if their actions concur in time to directly produce injury or to create an injury producing situation." Ford, Bacon & Davis, 96 Wis. 2d at 331 (quoting Butzow v. Wausau Mem'l Hosp., 51 Wis. 2d 281, 288-89, 187 N.W.2d 349 (1971)), (other citations omitted). Each joint tortfeasor is held liable for the entire amount of damages because the injury would not likely have occurred but for the negligence of any one of the joint tortfeasors. "The doctrine of joint and several liability is premised in the belief that an innocent victim should not suffer the loss caused by an immune or insolvent wrongdoer, when another wrongdoer is also liable." Force on Tort Reform Research McChrystal, Michael, Task Paper on Joint and Several Liability, reprinted in Wisconsin Bar Bulletin 16 (June 1987). ¶12 Also from early on, Wisconsin common law allowed for contribution Bielski v. between Schulze, or 16 among Wis. 2d multiple 1, 7, 114 joint N.W.2d tortfeasors. 105 (1962) (citing Ellis v. Chicago & N. W. Ry. Co., 167 Wis. 392, 167 N.W. 1048 (1918)). If one of two or more joint tortfeasors has paid all or a portion of a plaintiff's damages, that tortfeasor may 9 No. 99-0431 seek contribution, or reimbursement, from the other tortfeasors. "Contribution is an equitable doctrine, and the right to it arises when one has paid more than his just proportion of a joint liability." 633 (1933). Brown v. Haertel, 210 Wis. 354, 358, 244 N.W. In 1962, this court established the rule governing contribution that operates today: [W]e conclude the amount of liability for contribution of tort feasors who sustain a common liability by reason of causal negligence should be determined in proportion to the percentage of causal negligence attributable to each. We make it plain at the outset that this refinement of the rule of contribution does not apply to or change the plaintiff's right to recover against any defendant tort feasor the total amount of his damage to which he is entitled. Bielski, 16 Wis. 2d at 6. ¶13 not Even though this court has held that contribution does affect repeatedly joint asked and to several modify conform to contribution. liability, joint and the court several has been liability to However, the court has rejected these requests and imposed joint and several liability even though the party's proportionate share of liability was less than another defendant's. N.W.2d 600 driver See Chille v. Howell, 34 Wis. 2d 491, 500, 149 (1967) (joint whose causal and several negligence was liability only applied 20%); see to a also Fitzgerald v. Badger State Mut. Cas. Co., 67 Wis. 2d 321, 331, 227 N.W.2d 444 (1975) (joint and several liability applied to a defendant whose share of liability was only 30%). ¶14 however, The legislature's amendment of Wis. Stat. § 895.045, significantly changed 10 joint and several liability. No. 99-0431 Assuming that the plaintiff is not negligent, that plaintiff can still recover all of his or her damages from one of two more joint tortfeasors so long as one is found to be 51% or more causally negligent. of his or her But a plaintiff can no longer recover all damages from that tortfeasor is found to be less 1995 Wisconsin Act in same amending plaintiff's recovery 17, from than that 51% tortfeasor causally § 895.045, tortfeasor if negligent. thus found that 51% limits or a less causally negligent to that portion of the total negligence that is attributed to that tortfeasor.9 Wis. Stat. § 895.045(1). The issue before us today is the effect of applying the amended § 895.045(1) to Matthies' claim of negligence. III ¶15 Matthies' Whether a statute negligence claim has a retroactive "involves the effect construction upon of a statute [Wis. Stat. § 895.045] in relation to a particular set of facts and is thus a question of law" which this court reviews de novo. Chappy v. LIRC, 136 Wis. 2d 172, 180, 401 N.W.2d 568 (1987) (citing State v. Nordness, 128 Wis. 2d 15, 24, 381 N.W.2d 300 (1986)). Legislation presumably operates prospectively, not retroactively, "unless the statutory language reveals by express language or necessary retroactively." implication an intent that it apply Chappy, 136 Wis. 2d at 180. 9 Obviously, since the amendment of Wis. Stat. § 895.045(1), only one causally negligent defendant can be held jointly and severally liable for all of the plaintiff's damages, because only one such defendant can be found 51% or more negligent. 11 No. ¶16 that 99-0431 the It is evident from the legislature's express language legislature retroactively. intended Wis. Stat. § 895.045(1) apply According to 1995 Wisconsin Act 17, § 895.045(1) "first applies to civil actions commenced on the effective date of this subsection." same language in 1995 Wis. Act 17, § 4. Neiman v. American We examined this National Property and Casualty Co., 2000 WI 83, ¶¶1, 11, 236 Wis. 2d 411, 613 N.W.2d 160. This language was used in 1997 Wisconsin Act 89, § 4, which enacted new limits on recovery in wrongful death actions, and, of it, legislature we stated, intended to "this language include indicates within the that scope the of the amendment those claims in which the events giving rise to a See Martin, 192 Wis. 2d cause of action had already occurred. at 200 (phrase indicated the 'filed legislature's retroactively)." ¶17 on or after' intent in to a legislative apply the new act law Id. at ¶11. Here, the language in 1995 Wis. Act 17 that it first applies to actions commenced on its effective date, indicates that Wis. Stat. § 895.045(1) is also intended to apply to events which occurred before it became effective. 1995 Wisconsin Act 17 first became effective on May 17, 1995, the day after the publication date. Wis. Stat. § 991.11 (1993-94). A civil action must accrue before it can be commenced; and, a civil action is not commenced until a summons and complaint is filed with the § 893.02. court. Martin, 192 Wis. 2d at 200; Wis. Stat. For § 895.045(1) to apply to an action filed on the date it becomes effective, events leading to the accrual of the 12 No. action must have occurred previously. 99-0431 Section 895.045(1) thus applies to actions that have accrued prior to its enactment. Neiman, 2000 WI 83, ¶11; Martin, 192 Wis. 2d at 199-200. express language, the legislature plainly By its intended that § 895.045(1) be given retroactive effect. ¶18 Also, legislature Martin, the "legislative deliberately chose history this 192 Wis. 2d at 200. The suggests retroactive original that the application." legislation, 1995 Senate Bill 11, § 4, included the adopted language, that Wis. Stat. § 895.045(1) commenced on its Judiciary was Committee effective date. 11, sought to to be effective offered initially date. two applied However, amendments to actions the to Assembly change the One, Assembly Amendment 1 to 1995 Senate Bill change the initial applicability to "acts or omissions occurring" on the effective date of the legislation. This amendment would have had § 895.045(1) apply to actions which accrued on or after its effective date. those Another amendment, Assembly Amendment 2 to 1995 Senate Bill 11, would have had § 895.045(1) apply "on the first day of the 6th month beginning after publication." adopted, further indicating Neither of these amendments were that the legislature specifically intended § 895.045(1) to apply to actions which accrued prior to its enactment. ¶19 In See Bill History for 1995 Senate Bill 11. addition to determining whether the legislature intended Wis. Stat. § 895.045(1) to apply retroactively, we must also claim, determine whether, § 895.045(1) has as a applied to retroactive 13 Matthies' effect. negligence Martin, 192 No. Wis. 2d at concluded 199; that Neiman, the 2000 WI legislation 83, in effect as applied to the Martins." ¶14. Martin For had "a 99-0431 example, we retroactive 192 Wis. 2d at 199. In Martin, Cheryl Martin was injured on July 10, 1985 when she ran into the back of a truck while riding her bicycle. Id. at 163. Her injury was aggravated the same day when her father "was not properly informed of the alternate modes of treatment available to treat [her] injuries." Id. at 196. At the time of Ms. Martin's injury, there was no limit to the amount of noneconomic damages a plaintiff could action. Id. at 196-97. recover in a medical malpractice Almost a year later, on June 13, 1986, the legislature enacted a cap on such damages of $1,000,000; the cap became effective the following day. Id. The Martins subsequently filed a medical malpractice action; and, in August 1990, a damages. jury awarded Id. at 197. the Martins $2,150,000 in noneconomic We concluded that applying the cap to the Martins' award would have changed what they would have recovered under the law that existed at the time of the accident. "Since the cause of action accrued at a time when no cap existed on the amount of noneconomic damages recoverable, application of the cap to the Martins' cause of action constitutes a retroactive application. If we allowed the cap, it would act here to limit the recovery of a cause of action which, when it accrued, was unlimited." ¶20 issue Id. at 199. In Neiman, the statutory change after the claim at arose affected plaintiff's recovery. the defendant's liability, not the At the time of the accident which caused 14 No. 99-0431 Kristine Neiman's child to be stillborn, Wis. Stat. § 895.04(4) limited damages for the loss of society and companionship of a minor child in a wrongful death action to $150,000. Neiman, 2000 WI 83, ¶1. In 1997, the legislature increased the limit to $500,000. This court concluded that the statutory change Id. had a retroactive effect as applied to the defendant. the insurer, (ANPAC), accrued had on affected National a to the by § 895.04(4). ¶21 American right date of a fixed the retroactive Property and exposure injury application Casualty to which Company liability would of That is, the be that adversely change to Id. at ¶20. Matthies contends that he has an accrued or vested right to recover all of his damages from any defendant that may be jointly and severally liable for his injuries, including Positive Safety, and applying Wis. Stat. § 895.045(1)'s change to joint and several liability may limit his recovery. Positive Safety contends to the contrarythat Matthies' right to recovery does not vest or accrue until there has been a judgment in his favor, and that Matthies has no vested or accrued right in a particular remedy, in collecting on a judgment until it's final, in collecting from an immune or 15 insolvent defendant, or, in No. collecting from Positive Safety at all.10 99-0431 Here, there was no fixed statutory limit upon exposure to liability as in Neiman, 2000 WI 83, ¶20, or no statutory right to unlimited damages, as in Martin, 192 Wis. 2d at 206-07. Positive Safety's contentions. Nonetheless, we disagree with Matthies does have a vested right to recover all of his damages that are adjudged due to him from any defendant that may be jointly and severally liable for his injuries. ¶22 Matthies negligence. has a vested right in his claim for "[A]n existing right of action which has accrued under the rules of the common law or in accordance with its principles is a vested property right." Hunter v. School Dist. Gale-Ettrick-Trempealeau, 97 Wis. 2d 435, 445, 293 N.W.2d 515 10 Since joint and several liability relates to the extent of Positive Safety's liability, and not the existence of that liability, the court's determination of the effect of applying Wis. Stat. § 895.045(1) could be considered premature. See Mulder v. Acme-Cleveland Corp., 95 Wis. 2d 173, 185, 290 N.W.2d 276 (1980) (cross-claim for contribution premature when underlying negligence had not yet been determined). However, there is no dispute that Positive Safety, if found liable, will either be liable for the entire amount of Matthies' damages or that portion allocated to Positive Safety if found less than 51% causally negligent, given Mirro-Foley's immunity as Matthies' employer, and taking into account, if necessary, Matthies' settlement proceeds. Accordingly, inasmuch as the issue of retroactivity was appropriate for a declaratory order, the issue is appropriate for our consideration in reviewing the declaratory order. "Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed." Wis. Stat. § 806.04(1). 16 No. 99-0431 (1980) (quoting 16 C.J.S. Constitutional Law, § 254 (1956)).11 Matthies' negligence claim accrued on the date of his accident and injury. "It is the fact and date of injury that sets in force and operation the factors that create and establish the basis for a claim of damages." Id. at 442. Contrary to Positive Safety's assertion, it is the date of injury which is the triggering event with respect to the application of Wis. 11 In Hunter, "this court concluded that an amended statute of limitations could not work to bar a plaintiff's cause of action for negligence which accrued prior to the statutory amendment. The court in Hunter reasoned that the plaintiff had a vested right in a cause of action for negligence and that retroactive application of the amended statute of limitation would 'have the effect of destroying or terminating that right.'" Martin v. Richards, 192 Wis. 2d 156, 205-06, 531 N.W.2d 70 (1995) (quoting Hunter v. School Dist. Gale-EttrickTrempealeau, 97 Wis. 2d 435, 441, 293 N.W.2d 515 (1980)). 17 No. Stat. § 895.045(1)the date that Matthies' claim 99-0431 accrued.12 Included in Matthies' negligence claim is the right to recover 12 In cases concerning the past two major legislative changes to comparative negligence, this court measured whether those changes had retroactive effect based upon when the negligence claim accrued, i.e., when the accident and injury occurred. When, in 1931, the legislature eradicated contributory negligence as an absolute bar to recovery, Wis. Stat. § 895.045's predecessor, § 331.045, was to "take effect upon passage and publication," on June 16, 1931. § 2, ch. 242, Laws of 1931. Section 331.045 could have had retroactive effect by applying to an action that had already accruedwhere there had been an injury and accidentbut had not yet been tried as of June 16, 1931. However, this court held that § 331.045 did not apply to actions which accrued prior to June 16, 1931. "Although sec. 331.045, Stats. 1931, relating to comparative negligence, changed the rule as to the effect of contributory negligence as a defense, that modification of the rule is not applicable in actions to recover for injuries sustained prior to June 16, 1931." Peters v. Milwaukee E. R. & L. Co., 217 Wis. 481, 486, 259 N.W. 724 (1935); see also Obenberger v. Interstate Oil Co., 211 Wis. 245, 246, 248 N.W. 97 (1933) ("The collision occurred prior to the enactment of the comparative negligence statute by the 1931 legislature, so that contributory negligence is an absolute bar."); Brewster v. Ludtke, 211 Wis. 344, 346, 247 N.W. 449 (1933) (Plaintiff's negligence "constitutes a complete defense, as the collision occurred before the enactment of the Comparative Negligence Statute."). Similarly, when the legislature again modified contributory negligence in 1971, similar to the 1931 legislation, the 1971 modification took effect on the day after it was published. See 1971 Assembly Bill 50 (which was enacted as ch. 47, Laws of 1971). The court again held that the modification was not retroactive, i.e., it did not apply to actions that had accrued prior to the amendment. Holzem v. Mueller, 54 Wis. 2d 388, 398, 195 N.W.2d 635 (1972). This court has repeatedly rejected the contention that changes to contributory negligence lawwhich necessarily affect a plaintiff's recoveryshould apply after the accident or injury that gave rise to the plaintiff's negligence claim. At no time has this court considered that these changes should apply at the point in time Positive Safety suggests, that is, after a plaintiff has obtained a judgment. 18 No. under an unmodified doctrine of joint and several 99-0431 liability since, at the time Matthies' claim accrued, common law imposed joint and several liability upon any jointly liable person. See, e.g., Ford, Bacon & Davis, 96 Wis. 2d at 331-34. ¶23 Matthies' right to recover those damages adjudged due to him under joint and several liability would be affected by retroactive application of Wis. Stat. § 895.045(1). Section 895.045(1) is retroactive for the reasons already stated herein. Additionally, § 895.045(1) is retroactive because it attaches new legal consequences to events completed before its enactment. Miller v. Florida, 482 U.S. 423, 430 (1987). "Upon principle, every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already passed, must be deemed retrospective." Welch v. Henry, 223 Wis. 319, 340, 271 N.W. 68 (1937) (Fairchild, J., dissenting) (quoting Society for the Propagation of the Gospel v. Wheeler, Fed. Cas. No. 13,156, 2 Gall. *105, 139). Section 895.045(1) attaches new legal consequences to Matthies' injury. At the time that Matthies' cause of action accruedon August 22, 1992 when he was injuredMatthies could recover, assuming no negligence on his part, all of his damages from any causally negligent tortfeasor regardless of what portion of the total causal negligence is ultimately attributed to that tortfeasor. If § 895.045(1) were to apply to his negligence claim, Matthies could not recover all of his damages from any tortfeasor who is less than 51% causally negligent, as 19 No. he could previously. Section 895.045 thus attaches 99-0431 a new disability to Matthies' negligence claim. ¶24 Matthies' right to recover those damages adjudged due to him is impaired notwithstanding consideration of insolvent or immune individuals or entities which may also be jointly and severally liable, contrary to Positive contention.13 Safety's Granted, Matthies cannot recover any damages from his employer, Mirro-Foley, nor can Positive Safety recover from Mirro-Foley any damages paid to Matthies' under a right to contribution since workers' compensation is "the exclusive remedy against the employer." Wis. Stat. § 102.03(2). (We have effect of Wis. Stat. § 102.03(2) as "immunity." Acme-Cleveland (1980)). Corp., 95 Wis. 2d 173, 175, described the See Mulder v. 290 N.W.2d 276 However, whether another jointly and severally liable person is immune or insolvent has no impact upon determining the retroactive recovery is effect no of less § 895.045(1). effected by A plaintiff's retroactive right to application of § 895.045(1) if the plaintiff is injured in a multi-car accident instead of on the job. ¶25 Wisconsin Stat. § 895.045(1) would have retroactive effect if it were applied to Matthies' negligence claim because 13 Positive Safety also contends both in its briefs and at oral argument that even before the amendment to Wis. Stat. § 895.045(1), common law required the jury to consider and allocate the relative negligence of all causally negligent entities, regardless of whether or not those entities are parties. However, Matthies does not dispute this, and, accordingly, we do not address Positive Safety's arguments on that matter. 20 No. 99-0431 it would impair his right to recover all of his damages adjudged due to him from any defendant found causally negligent for his injuries, provided that Matthies' negligence is not found to be greater than that defendant's. has retroactive effect here. We thus find that § 895.045(1) We also find that the legislature expressly intended § 895.045(1) to apply retroactively. the retroactive operation of § 895.045(1), we next Given consider whether such retroactivity is constitutional. IV ¶26 "Retroactive constitutionality, overcoming That that burden is and legislation the enjoys challenger presumption."14 demonstrating bears Martin, the a 192 presumption of the of burden Wis. 2d unconstitutionality legislation beyond a reasonable doubt. Wis. 2d 835, 853, 578 N.W.2d 602 (1998). at of 200. the Jackson v. Benson, 218 Notwithstanding that heavy burden, because retroactive legislation presents unique constitutional problems in that it often unsettles important rights, it is viewed with some degree of suspicion and must be analyzed within a framework different from that of prospective legislation. "The [retroactive] aspects of legislation, as well as the prospective aspects, must meet the test of due process, and the justifications for the latter may not suffice for the former." 14 "Whether or not a legislative act that applies retroactively violates due process is a question of law, which this court reviews de novo." Neiman v. Am. Nat'l Prop. and Cas. Co., 2000 WI 83, ¶8, 236 Wis. 2d 411, 613 N.W.2d 160 (citing Chappy v. LIRC, 136 Wis. 2d 172, 184, 401 N.W.2d 568 (1987)). 21 No. Martin, 192 Wis. 2d at 201 (quoting Mining Co., 428 U.S. 1, 17 (1976)). Usery Turner v. 99-0431 Elkhorn Accordingly, we look first to whether Wis. Stat. § 895.045(1), as applied retroactively, meets the test of due process.15 ¶27 That Matthies has a vested property right which has been substantially impaired by retroactive application of Wis. Stat. § 895.045(1) purposes. "is not dispositive for due process . . . Having concluded that the statute retroactively affects a substantive right that accrued before the passage of the legislation, we then proceed to apply the balancing test set forth in Martin." Neiman, 2000 WI 83, ¶14. The Martin test examines whether there is a rational basis for the retroactive application of the statute. Id. at ¶9. Whether there exists a rational basis involves weighing the public interest served by retroactively applying the statute against the private interest that retroactive application of the statute would affect. Martin, 192 Wis. 2d at 201. "Implicit within this analysis is a consideration of legislation." the unfairness Id. 15 created by the retroactive Due process is a right guaranteed by the United States and Wisconsin Constitutions. Article I, Section 1 of the Wisconsin Constitution provides: "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed." This due process clause is substantially equivalent to its counterpart in the federal constitution. Neiman, 2000 WI 83, ¶8. The Fourteenth Amendment to the United States Constitution states in pertinent part that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law . . . ." 22 No. 99-0431 ¶28 In Martin, 192 Wis. 2d at 201-12, we examined whether retroactive application of the cap on noneconomic damages in medical malpractice actions violated due process. The defendants contended that retroactive application was warranted by increased medical malpractice costs incurred by medical malpractice actions and increased awards. 03. defending Id. at 202- However, the evidence indicated that few persons recover noneconomic damages in excess of $1,000,000. Id. at 203-04. Consequently, applying the cap retroactively would have no real impact upon insurance future costs Compensation Fund. ¶29 On the malpractice and funds costs, available including in the malpractice Patients' Id. at 203-05. other side of the equation, retroactive application of the damages cap had a profound effect upon the private interest at issue, namely, the Martins' right to recover their actual noneconomic damages. In contrast, the Martins' right to unlimited damages was a fixed, substantive right. If the cap is applied to the Martins the impairment of their right will be severe: the Martins will lose $1,150,000 of their noneconomic damages. Further, they will have had no meaningful notice of such impairment. And, because of the seriousness nature of their injuries, they will be forced to help pay for "fixing" the system, while others less severely injured will not. The taking is substantial; the unfairness is palpable. Accordingly, when we balance the public interest against the private interest affected here, keeping in mind basic considerations of fairness, we conclude that the private interest outweighs the minimal public interest served by the retroactive application of the cap. 23 No. 99-0431 Id. at 211. ¶30 the More recently, in Neiman, 2000 WI 83, ¶1, we examined constitutionality of retroactively applying a statutory increase in recovery for the loss of society and companionship for wrongful death of a minor. included the settled The private interests at issue expectations of those individuals and insurers who had obtained and provided coverage in relation to the amounts which were set by § 895.04(4) at the time of the injury. at Id. stated: "[n]o ¶22. In addressing such expectations, we . . . pressure, economic or otherwise, appears to support the retroactive increase in damages for loss of society and companionship. retroactive limitations . . . In sum, the public interests served by application do not of the support increase abrogation of wrongful of the death settled expectations that accrued at the time of the accident." Id. at ¶¶30, 31. ¶31 With Neiman and Martin in mind, we turn to considering the public interest served by retroactive application of Wis. Stat. § 895.045(1) to Matthies' negligence claim. "[T]he public purpose supporting retroactivity under a due process analysis must . . . be substantial, valid general economic or social issue." and intended to remedy a Neiman, 2000 WI 83, ¶23. Indeed, where, as here, there is a substantial impairment of a 24 No. vested right, "a significant must justify that impairment. ¶32 the legitimate public interest" Chappy, 136 Wis. 2d at 188.16 As an initial matter, we note that there is nothing in Legislative which and 99-0431 indicates Reference that Bureau's the legislative legislature drafting file Wis. Stat. amended § 895.045 in response to a pressing, or otherwise, economic or social issue. alternatives The legislature regarding joint and considered several a number liability of before adopting the language that was enacted as 1995 Wis. Act 17. The original legislation, 1995 Senate Bill 11, abrogated joint and several liability entirely. "Under this bill, a joint tort- feasor's liability is limited to the percentage of the total causal negligence attributed to that party." Analysis by the Legislative Bill Reference Subsequently, Senate Bureau to Substitute 1995 Senate Amendment 1 was 11 at offered 2. and adopted, which read that "[t]he liability of each party found to be causally negligent whose percentage of causal negligence is less than 51% is limited to the percentage of the total causal negligence attributed to that party. A party found to be causally negligent whose percentage of causal negligence is 51% or more shall be jointly and severally liable for the damages 16 Regarding a contract clause challenge to a statutory modification of temporary total disability benefits, the court indicated that "[i]f the legislation constitutes a substantial impairment, there must exist a significant and legitimate public purpose behind the legislation. . . . If the impairment is less than substantial, a diminished degree of scrutiny is required." Chappy, 136 Wis. 2d at 188 (footnote omitted). 25 No. allowed." at 99-0431 Senate Substitute Amendment 1, to 1995 Senate Bill 11 1-2.17 Before this language, as amended, was enacted as § 895.045(1), the Senate considered abrogating joint and several liability where the person is 25% or less causally negligent, or alternatively, negligent. 1, to where the person is 49% or less causally Senate Amendment 3, to Senate Substitute Amendment 1995 Senate Bill 11; Senate Amendment 7, Substitute Amendment 1, to 1995 Senate Bill 11. to Senate The Assembly considered another alternative, based upon a 15% limit provided that "the person's causal negligence is at least twice that of the causal negligence of the person recovering or the causal negligence of the person recovering is 0%, and only extent of the limits of any applicable insurance." to the Assembly Substitute Amendment 1, to 1995 Senate Bill 11 at 2. Evident from both the range of proposed changes and the final result, the legislature doctrine intended of joint and to modify several the liability. current But to common-law determine, based on the legislative history available, what motivated the legislature to modify the doctrine, requires speculation. ¶33 Positive Safety contends that the public interest served by Wis. Stat. § 895.045(1)'s modification of joint and several liability is fairnessapportioning liability according to the degree of causal negligence 17 and thus paralleling the Senate Amendment 1, to Senate Substitute subsequently replaced "party" with "person." 26 Amendment 1, No. 99-0431 legislative change from contributory to comparative negligence.18 However, as Positive Safety admits, "the modification of joint and several liability achieves the same important public goal as contribution, just by different means." Br. at 24.) Yet, even after the (Appellant's Initial enactment of Wis. Stat. § 895.045(1), contribution remains a viable alternative to the legislature's whereby a modification joint reimbursement of tortfeasor "in joint can proportion pursue to before yearsthe the amendment doctrine apportionment of of to among liability, tortfeasors percentage of for causal Bielski, 16 Wis. 2d at 6. comparative contribution fault several other the negligence attributable to each." Long and joint negligenceover ensured the 75 equitable tortfeasors. Ellis v. Chicago & N.W. Ry. Co., 167 Wis. 392, 167 N.W. 1048 (1918). While Wis. Stat. § 895.045(1) may have shifted, in part, the equitable apportionment of liability among joint tortfeasors from a contribution action to a tort action, that shift does not, by itself, establish a public interest of fairness. ¶34 Even if fairness § 895.045(1), there retroactively to is ensure were no need such served to fairness. by Wis. apply Stat. § 895.045(1) The equitable apportionment of liability among joint tortfeasors is ensured by contribution, when all such tortfeasors 18 are collectible. Positive Safety also refers to a number of out-of-state decisions to assert various public interests served by Wis. Stat. § 895.045(1). We decline to regard those cases as authoritative in establishing a public interest here. 27 No. 99-0431 Accordingly, while fairness may serve an interest of prospective application of § 895.045(1), application thereof. ¶35 it does not justify retroactive Martin, 192 Wis. 2d at 201. Moreover, if the public interest served by Wis. Stat. § 895.045(1) is to fairly allocate liability in proportion to that amount negligent, several of the negligence for legislature liability which would entirely. the have Even person is abrogated though causally joint the and legislature initially considered that option, the legislature later rejected it. See 1995 Senate Bill 11; see also Bill History for 1995 Senate Bill 11. Instead, the legislature adopted a partial abrogation of joint and several liability, under which a person who is 51% or more causally negligent could be liable for the entire amount of plaintiff's damages (minus any contributory negligence), regardless of the portion of the total negligence apportioned to that person. ¶36 Positive 1995 Wis. Act 17, § 1. Safety also argues that Wis. Stat. § 895.045(1) serves a public interest of decreasing liability insurance costs insurance. and increasing the availability of liability There is nothing in the record that supports such a conclusion, nor is there any indication that the legislature considered liability insurance costs or the availability thereof in drafting § 895.045(1). More importantly, there is no evidence that liability insurance costs and availability turns upon whether the insured could be held partially liable, wholly liable, or jointly and severally liable. in Martin also applies here: What this court found "we . . . are familiar with the 28 No. 99-0431 generic reasons which are often cited for [limiting recovery]. However, as stated above, there is little if any evidence in this record to support those assertions." ¶37 192 Wis. 2d at 205. Although there may be a public interest in fairness to warrant modification of joint and several liability, the same does not justify § 895.045(1). retroactive application Wis. Stat. Rather, there is a public interest that is served by not applying that statute retroactively. could of apply retroactively, such retroactive If § 895.045(1) application could potentially affect cases that have been resolved by litigation or settlement, generating further, unnecessary, litigation. In Fitzgerald v. Meissner & Hicks, Inc., 38 Wis. 2d 571, 577, 157 N.W.2d 595 (1968), we explained such effect of retroactively applying the change in the common law of contribution: The possibility of imposing an excessive burden on the administration of justice was a compelling judicial reason for the limitation placed on the retrospective application of this court's decision in [Bielski], which changed our contribution rule and discarded the concept of gross negligence. This is best described by former Mr. Justice Thomas E. Fairchild in his article in 46 Marquette L. Rev. 1, 15: "In Bielski the court limited the retrospective application of the change in law with respect to contribution and gross negligence. Here again were elements of law which are ordinarily not relied upon by people who are about to engage in tortious conduct. Yet the court was mindful of the fact that if full retrospective application were given, burdens of further litigation would probably be imposed on litigants and the public in cases where claims had been substantially disposed of by litigation or settlement. Such burdens would seem to be wasteful." 29 No. Fitzgerald, 38 Wis. 2d at 577.19 99-0431 We would not expect that, with any degree of frequency, cases would be reopened or there would be further litigation on cases already disposed of or settled. Nevertheless, factor to the burdens consider in of further determining litigation the public is another interest in retroactively applying a change in the law. 19 There is, however, an important distinction between Bielski v. Schulze, 16 Wis. 2d 1, 7, 114 N.W.2d 105 (1962), and the case at hand as to what event would trigger retroactive application of the change in law. In Bielski, this court refined the common law rule of contribution from "equal contribution" (three defendants pay one-third of the damages for which they are jointly and severally liable) to contribution based upon the amount of negligence assigned to each defendant (three defendants pay 15%, 35%, and 50%, respectively, of the damages according to the amount of negligence for which they are causally negligent). Id. at 6-14. The court determined that this modification applied at that point in time when the right to contribution typically arises, namely, when a tortfeasor has paid "more than his proportionate share." Id. at 9. The new rules shall apply generally whether the cause of action has heretofore arisen or not except that they shall not apply in the following situations: (1) Where a judgment based upon the old rules has been entered and no motion to vacate it has been made or appeal taken before this date; (2) where verdicts have been rendered sufficient to dispose of the case under the former rules but where application of the new rules would require a new trial not required for other reasons; (3) when settlements have been effected with one co-tort-feasor in such manner as would sufficiently protect him from liability for contribution under the former rules. Id. at 19. Here, in contrast, the trigger, the right to recovery, arises at that point in time when that right accrues, i.e., at the time that the plaintiff is injured. Martin, 192 Wis. 2d at 199; Hunter, 97 Wis. 2d at 442. 30 No. ¶38 99-0431 We next turn to the other side of the Martin balancing test, and consider the private interest which would be affected by the retroactive application of Wis. Stat. § 895.045(1). We keep in mind the basic unfairness of applying a rule that did not exist at the time that Matthies was injured. See Martin, 192 Wis. 2d at 201. ¶39 Simply, the private interest affected is Matthies' right to recover all of his damages adjudged due to him from Here, as in Martin, a right of recovery that Positive Safety. accrued on the date of injury has been substantially impaired by subsequent legislation. 192 Wis. 2d at 208-09. In Martin, "[i]f applied, the cap on damages would retroactively impair that right [to recover, in full, the noneconomic damages awarded by the jury]. If the cap on damages were applied, the Martins would lose $1,150,000over half of their recovery. severe impairment of their rights." ¶40 could At the recover Positive time Safety Id. at 209. that Matthies' of the damages under the common all This is a claim may law be accrued, awarded doctrine of Matthies him from joint and several liability if Positive Safety was found to be causally negligent. Wisconsin Stat. § 895.045(1), applied retroactively, would affect Matthies' vested right to recover all the damages awarded from Positive Safety. If, at best, Positive Safety is found to be 50% causally negligent, Matthies will lose half of the damages Positive to Safety which as he of had the been time 31 entitled his to injury recover was from incurred. No. 99-0431 Retroactive application of § 895.045(1) would thus substantially impair Matthies' negligence claim. ¶41 "Our analysis also requires fairness of the retroactive taking." 209. that we examine the Martin, 192 Wis. 2d at Here, as in Martin, the impairment of Matthies' right to recover those damages adjudged due to him is inherently unfair because Matthies had no real notice of the impending statutory impairment of that right. In Martin, we said: The cap was published one day and it became law the next. Without any meaningful notice, the Martins were stripped of their right to unlimited damages because they did not file on June 13, 1986, the day before the announced cap became effective . . . . Id. Similarly, Wis. Stat. § 895.045(1) became effective the day after it was published. 1995 Wis. Act 17, § 4. On May 16, 1995, Matthies could recover all of his damages from Positive Safety; the next day, he could notunless, which, apparently, the parties agree may be unlikely, Positive Safety is found to be 51% or more causally negligent.20 ¶42 The lack of meaningful notice is also inherently unfair because Matthies had no notice that he should have filed this action on May 16, 1995, the date of publication, instead of May 17, 1995, or after. However, another plaintiff who was injured after Matthies, but filed a negligence claim before, 20 Referring himself and Positive Safety's counsel, Matthies' counsel stated at oral argument that "we both recognized very clearly that this is a case where the employer may well be more than 51% at fault." 32 No. could fully recover (notwithstanding any 99-0431 contributory negligence) from any one of two or more joint tortfeasors. The intrinsic unfairness in the lack of notice here bolsters the conclusion that the legislature typically enacts legislation to apply prospectively, rather than retroactively, so as to avoid disrupting settled expectations. Strong common-law tradition defines the legislature's primary function as declaring law to regulate future behavior. Thus, as a matter of justice, no law should be enforced before people can learn of its existence and conduct themselves accordingly. In short, retroactivity disturbs the stability of past transactions. Snopek v. Lakeland Med. Ctr., 223 Wis. 2d 288, 293-94, 588 N.W.2d 19 (1999) (quoting Employers Ins. v. Smith, 154 Wis. 2d 199, 453 N.W.2d 856 (1990)). ¶43 Here, the settled expectations are all on the side of Matthies. The Martin balancing Safety's private interest. does not consider 192 Wis. 2d at 210-211. Positive However, even if Positive Safety's interests were considered, Positive Safety had no interests that would be abrogated by retroactive application of Wis. Stat. § 895.045(1). Unlike in Neiman, Positive Safety had no fixed exposure to liability as of the date of liability. Matthies' injury, or 2000 WI 83, ¶¶20-22. no settled expectations of As of the time that Matthies' claim accrued, unmodified joint and several liability was the operative doctrine. To apply the modified joint and several liability in § 895.045(1) would be a boon to Positive Safety. 33 No. "This hardly befits notions of fundamental fairness." 99-0431 Martin, 192 Wis. 2d at 210. ¶44 Now that the respective interests have been considered, the court balances them. Having considered the loss of rights incurred . . . and the unfair manner in which that loss was occasioned, we must engage in the due process analysis recited earlier to determine whether the retroactive application of [the statute at issue] is constitutional. To restate that analysis, we must balance the public interest served by the retroactive application of the [statute at issue] against the private interests that are overturned by it, including any unfairness inherent in such application. Id. at 210-11. ¶45 There is little in the balance on the side of a public interest served § 895.045(1). by retroactive application of Wis. Stat. Contribution still operates to serve an asserted purpose of § 895.045(1) to ensure that one joint tortfeasor does not pay more negligence. than his or her portion of the total causal There is no evidence that modification of joint and several liability would facilitate the acquisition of liability insurance, or reduce the cost thereof. Nor is there any evidence that the legislature was faced with a pressing economic or social need to warrant retroactive application of § 895.045(1). ¶46 In contrast, retroactive application of Wis. Stat. § 895.045(1) would severely impair Matthies' right to recover all of his damages adjudged due to him. Joint and several liability applied to Positive Safety at the time that Matthies' 34 No. negligence claim accrued. Yet, without any real 99-0431 notice, § 895.045(1) was enacted, which would in effect, limit joint and several liability, Matthies' as the parties predict, recovery full and, of his damages. At prevent best, and disregarding the unique situation arising from the fact that he was injured at work (see § 102.03(2)), Matthies could lose half of his damages. recovery, that negligence less notwithstanding once recovery apportioned considerably several Where than the liability, Matthies will to be It the common to Safety, should legislature's entitled limited Positive 50%. was be modification law doctrine to that which causal may remembered of was full be that joint and originally adopted because, regardless of the fault attributed to any one of multiple joint tortfeasors, the injury or harm would not have occurred but for that tortfeasor's negligence. See Ford, Bacon & Davis, 96 Wis. 2d at 331. Here, "[t]he taking is substantial; the unfairness is palpable." Martin, 192 Wis. 2d at 211. ¶47 We reasonable find doubt retroactively that Matthies that there applying the has is partial established no rational abrogation of beyond basis joint a for and several liability in Wis. Stat. § 895.045(1) to his negligence claim. interest, Balancing we the conclude private that interest the against substantial the public impairment of Matthies' right to recovery significantly outweighs the public interest, if § 895.045(1). any, served by retroactive application of Matthies was entitled to a full recovery of his damages at the time he was injured from any defendant found 35 No. causally negligent. 99-0431 It would be unfair and violate due process to change that rule after the fact. Accordingly, retroactive application of § 895.045(1)'s modification of joint and several liability is an unconstitutional violation of due process.21 reiterate, though, that we find § 895.045(1) We unconstitutional only as it applies retroactively.22 V ¶48 At the time that Matthies was injured by the punch press, there were no limits on his right to recover all of the damages adjudged due to him from any party found to be jointly and severally liable. The enactment of Wis. Stat. § 895.045(1) impaired that right, which accrued to Matthies on the date he was injured. In applying the Martin test to determine whether retroactive application of § 895.045(1) violates due process, we 21 Because we find that retroactive Stat. § 895.045(1) violates due process, Matthies' contention that such retroactive the equal protection clauses of the United Constitutions and the remedies clause Constitution. 22 application of Wis. we need not address application violates States and Wisconsin of the Wisconsin We do not address amicus curiae Civil Trial Counsel of Wisconsin's contentions regarding the constitutionality of the prospective application of Wis. Stat. § 895.045(1). The arguments were made in response to Wisconsin Academy of Trial Lawyers' amicus curiae brief filed with the court of appeals. The Wisconsin Academy of Trial Lawyers did not repeat those arguments before this court, and instead, contended that "the constitutionality of applying the May 17, 1995 amendment to § 895.045 to the facts of the case at bar ought to be resolved exclusively by determining that amendment's retroactive effect on the due process rights of Matthies." (Initial Amicus Curiae Br. of the Wisconsin Academy of Trial Lawyers at 2.) We have done just that. 36 No. 99-0431 conclude that any public interest served by that retroactive application Matthies' is substantially right to outweighed recover. We by hold the impairment that of retroactive application of § 895.045(1) to Matthies' negligence claim would be unconstitutional, and we thus affirm the circuit court. By the Court. The order of the circuit court is affirmed. 37 No. 1 99-0431
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