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Estate of Hunter1/14/1999
the majority's perspective is contra our civil procedure rules, which require parties to a case be made a party to the law suit such that the plaintiff may receive the contribution due while the defendants may subsequently fight amongst themselves as to the amount each should pay. See Miss. R. Civ. P. 19. The plaintiff should not have to constructively defend the phantom defendant.
. The majority makes much ado of the fact that the plaintiff may receive a windfall. Yet, I perceive that under our jurisprudence the plaintiff would be subjected to more harm in contravention of McBride v. Chevron U.S.A., 673 So. 2d 372 (Miss. 1996), than otherwise would be the case. Consider the plausible case of an employee working for a manufacturer who is sued under a strict liability theory. In such a case, the manufacturer may bring in contractors and sub-contractors who installed machinery in the plant. The employer may also be dragged into a case under the premise that the employer was negligent due to some modification to the machinery. Then as to immunity, specifically deemed unaffected by the statute in §§ (8), the employer is not required to defend the suit and pays no money while the employee is required both to defend the employer without benefit of the employer's contribution of expenses. Further, the employee must return to the employer the funds attained through worker's compensation. Given such a situation, there is no way of determining strict liability or apportioning between the two causes of action, or between the parties. Contrary to the plight of the employee, if the employer is found greater than 50 % at fault, the employer does not lose the funds the employer was compensated. Indeed, the employer gets all the funds despite having a higher degree of negligence than the employee. Such is neither Justice nor due process.
. Further, the statute fails to account for what happens when one is faced with an uninsured motorist claim and attempts to collect under uninsured motorist coverage but other parties are involved. How does one apportion out the negligence of the uninsured or underinsured with their own and the other parties involved? How does such a situation equate with the theory of joint and several liability? While the plaintiff pays an insurance premium for negligence to which an uninsured motorist contributed, the plaintiff is unable to collect any or all of his money for the negligence. Such is particularly so where the plaintiff sues not the uninsured motorist, but only sues the insurance company for breach of contract due to the uninsured motorist's negligence or contribution. Consider also the scenario where the uninsured motorist is only 10 % at fault while two or three other defendants are liable for the remaining 90 % of fault. In such a situation, the majority's equation relegates the plaintiff to recover solely 10 % from the contract the plaintiff personally purchased.
. Therefore, given the above analysis, I find error in allowing the jury to consider the fault of the settling defendant, Lowell Gann. Accordingly, I concur in the result to reverse and remand for trial, yet I worriedly Dissent as to the majority's rationale and analysis.
SULLIVAN, P.J., JOINS THIS OPINION.
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