2006-657, CHARLES TIBERGHEIN & a. v. B.R. JONES ROOFING CO.

decision,

I). We recite only those facts pertinent to this appeal.

Tiberghein v. B.R. Jones Roofing Co., 151 N.H. 391 (2004) (Tiberghein

account of the underlying facts of this case can be found in our previous This is the second time this matter has come before us. A detailed

reflected credits for previous settlements. We affirm. Roofing Company, satisfied the arbitrator’s award through a tender that the Superior Court (Nadeau, J.) confirming that the defendant, B.R. Jones HICKS, J. The plaintiffs, Charles and Janet Tiberghein, appeal orders of

and orally), for the defendant. Donahue, Tucker & Ciandella, of Exeter (Robert M. Derosier on the brief

Sharon A. Spickler on the brief, and Ms. Spickler orally), for the plaintiff. to press. Errors may be reported by E-mail at the following address: Burns, Bryant, Cox, Rockefeller & Durkin, of Dover (Paul R. Cox and

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2006-657 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Strafford Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 The arbitrator responded:

it had satisfied the arbitrator’s award. 2

just the damages due . . . as a result of the defendant’s negligent conduct.” the question of “whether the $250,000 award was intended to represent . . . and the defendant. $65,000 settlement the plaintiffs received. The court referred to the arbitrator

total amount they recovered from the settlements. The defendant argued that

claim. Following the settlements, the only remaining parties were the plaintiff defendant should not have subtracted from the amount it owed, any of the In January 2006, the plaintiffs amended their motion, claiming that the

owed by including the $8,000 the plaintiffs paid to Hannaford as part of the The plaintiffs asserted that the defendant erroneously calculated the amount it superior court to determine the balance due and order the defendant to pay it. The plaintiffs disputed this amount and in July 2005, they asked the

remitted to Hannaford, for the settlements the plaintiffs received. amount reflected a credit of $65,000, which included the $8,000 the plaintiffs been wrongfully named as a defendant. The plaintiffs paid $8,000 to settle that interest from the date of the award, pursuant to RSA 336:1 (Supp. 2006). This by Hannaford against Durham Market Place. Hannaford alleged that it had attorney forwarded a check in the amount of $192,152.33, which included Subsequently, the plaintiffs were joined in a cross-suit for indemnification filed affirmed the superior court’s decision. Id. In October 2004, the defendant’s which affirmed it. Id. at 392-93. Following an appeal by the defendant, we The defendant appealed the arbitrator’s award to the superior court,

them, collectively, $250,000. Id. arbitration. Id. The arbitrator found in favor of the plaintiffs and awarded summary judgment motion, the parties agreed to submit the case to binding

whereby each agreed to pay the plaintiffs $32,500 ($65,000 total). plaintiffs settled with Durham Market Place and Colonial Durham Associates and (4) Colonial Durham Associates, the owner of the shopping plaza. Id. The Hannaford Brothers, Inc., which sublet the property to Durham Market Place; The plaintiffs sued: (1) the defendant; (2) Durham Market Place; (3)

satisfy his guarantee. Id.

Id. The defendant was notified of roof leaks, yet failed to

such as leaks, it would repair the roof and thereafter maintain it in a waterprovided a ten-year roofing guarantee, which stated that upon notice of defects, defendant had repaired and restored the roof in 1992. Id. The defendant had the fall, store employees traced the water to a leak in the roof. Id. The water in the Durham Market and fractured his right ankle. Id. at 392. After On October 15, 1995, Charles Tiberghein slipped and fell on a puddle of issue on appeal.

p. 3 allowing the credit violated RSA 542:8. Therefore, we will not address this credit, they did not assert in any of their pleadings to the trial court that motion in superior court arguing that the defendant was not entitled to the

request for the $65,000 credit was improper. Although the plaintiffs filed a

the arbitration award outside the parameters of RSA 542:8, the defendant’s 507:7-i within the statutory time limit, and as the trial court could not reduce modification of the award to establish a credit under RSA 507:7-h and RSA 3

arbitrator’s award. This appeal followed.

the award.” The plaintiffs argue that because the defendant failed to request a 542:8 (2007); plaintiffs caused only by the conduct of the defendant.

intended to represent just the damages due the See Tiberghein I, 151 N.H. at 393.

ruling that the October 2004 payment of $192,152.33 fully satisfied the

now precludes the defendant from claiming such credit.

to the superior court for an order confirming the award, correcting or modifying i (1997) against the arbitrator’s award after we confirmed the award under RSA within one year after the award is made any party to the arbitration may apply plaintiffs rely upon RSA 542:8 (2007), which provides that, “[a]t any time O’Neill, 132 N.H. 665, 667 (1990) accident of October 15, 1995. The award was not (quotation and brackets omitted). The confirmed by the superior court, “there can be no variation from it.” Leach v. N.H. at 393. The plaintiffs contend that once an arbitration award has been review because they were not raised in the trial court. See Tiberghein I, 151 to the plaintiffs. On July 31, 2006, the trial court denied the plaintiffs’ motion, First, we identify several issues that have not been preserved for our reduce its payment for damages by taking a credit for the $65,000 already paid

entitlement to the $65,000 credit in a motion to vacate the arbitration award

and (2) whether the defendant’s failure to raise the issue of its

defendant is entitled to take a credit under RSA 507:7-h (1997) and RSA 507:7- On appeal, the plaintiffs raise the following issues: (1) whether the due the plaintiffs for their loss resulting from the

arbitrator.

pending issues, asking the court to find that the defendant was not entitled to settlement amounts were not disclosed to the Thereafter, the plaintiffs filed a motion to obtain final disposition on all settlements was affected in the arbitration. In fact,

intended to represent the entire amount of damages The award of $250,000 by the arbitrator was

Jones and [those] with whom the plaintiffs reached No apportionment of fault between the defendant for the release. p. 4 other persons by the amount of the consideration paid

it reduces the claim of the releasing person against plaintiff's verdict by that amount.

accordance with the proportionate fault of each of the parties.”

claim unless its terms expressly so provide. However, release, or covenant not to sue, and shall reduce the not discharge any other person liable upon the same terms and from all liability for contribution, but it does

there is no jury shall find, the amount of damages to be awarded . . . in

amount of consideration paid for any such settlement, John A. Cookson Co. v. N.H. Ball Bearings, 147 N.H. 352, 357 (2001)

the legislature as expressed in the words of a statute considered as a whole.” injury discharges that person in accordance with its “In statutory interpretation, this court is the final arbiter of the intent of

RSA 507:7-e (1997) directs the court to “[i]nstruct the jury to determine, or if

any such trial, the court shall inquire of counsel the [U]pon return of a verdict for the plaintiff by the jury in one of 2 or more persons liable in tort for the same RSA 507:7-i provides, in relevant part:

A release or covenant not to sue given in good faith to for reconsideration,

issues were not raised in the plaintiffs’ motions to the trial court, or by motion RSA 507:7-h provides that:

507:7-e and RSA 507:7-i do not apply to arbitration awards. dollar-for-dollar credit under RSA 507:7-h for the settlement because RSA 507:7-i. They argue therefore, that the defendant is not entitled to a pro tanto, assert that RSA 507:7-h must be read in the context of RSA 507:7-e and RSA We now address the issues properly before us on appeal. The plaintiffs

therefore not consider their merit. See Tiberghein I, 151 N.H. at 393.

inconsistent positions regarding modification of the award. Because these plaintiffs further argue that judicial estoppel bars the defendant from asserting RSA p. 5 507:7-h and RSA 507:7-i should have been litigated in Tiberghein I. The amount owed to them per the arbitrator’s award because any credits under plaintiffs claim that res judicata precludes the defendant from relitigating the The plaintiffs raise two other issues for the first time on appeal. The 5

persons [are] liable in tort for the same injury.” RSA p. 5 507:7-h.

RSA p. 5 524:1-b (2007). verdict is rendered or a finding is made.”

Therefore, the plaintiffs’ reliance upon

the date of the award based upon RSA 336:1 (Supp. 2004). to all arbitration proceedings. tortfeasors. Id. at 668. consideration paid for a settlement, for all proceedings in which “2 or more RSA p. 5 524:1-b and the narrow scope of Title LIII, we refused to apply the statute court asking the court to add interest from the date of the writ pursuant to Because of the restrictive language in the prejudgment interest to “civil proceedings at law or in equity in which a verdicts and not to arbitration awards. In “Proceedings in Court.” Furthermore, the language in RSA 524:1-b restricts RSA chapter 524 (2007) is included under Title LIII, which is titled common law regarding such credits.

interest in RSA p. 5 524:1-b to be analogous to the taking of a pro tanto credit. neither the issue in Leach nor the statutory language regarding prejudgment

award but held RSA p. 5 524:1-b to be inapplicable and only added interest from plaintiff received from a good faith settlement with one of two or more Leach, 132 N.H. at 667. We ultimately affirmed the arbitration proceedings. The statute plainly affords a credit, determined by the 507:7-h contains language that is generally applicable to both court and to arbitration and receiving an award, the plaintiffs filed a motion with the trial Process,” plainly does not limit the taking of a credit to court proceedings. RSA Leach, after submitting their claim conclusion that RSA 507:7-e, RSA 507:7-h and RSA 507:7-i apply only to jury The plaintiffs rely upon our reasoning in Leach to support their and we will not add words to the statute. RSA 507:7-h simply codifies the

plaintiffs’ verdict pursuant to RSA p. 5 507:7-h. arbitrator’s award. The payment of $192,152.33 was a proper reduction of the this case, the trial court did not err in ruling that the defendant satisfied the

Nilsson v. Bierman, 1 p. 5 50 N.H. 393, 398 (2003). We hold that in

dollar reduction in the amount of the judgment equal to the consideration the RSA p. 5 507:7-h, therefore, entitles a non-settling tortfeasor to a dollar-for- RSA chapter 507 (2007), as part of Title LII, “Actions, Process, and Service of

RSA p. 5 507:7-h restricting its application to civil proceedings in law or equity,” Accordingly, we agree with the defendant that “there is no language in

trial court on how to proceed when a credit is required in a trial proceeding. “a verdict” and “the jury” in RSA p. 5 507:7-i and RSA 507:7-e merely instructs the restrict their application to court proceedings. Rather, reference to “the court,” The language of RSA 507:7-e, RSA 507:7-h and RSA 507:7-i does not

construing its plain and ordinary meaning. Id. (quotation omitted). We begin by considering the statutory language, were awarded.

p. 6 because it is charged with a common theory of liability from which damages

personal injuries.” The defendant is therefore jointly and severally liable aforementioned defendants . . . the plaintiff has suffered grave and permanent direct result of joint, combined and concurrent negligence of the 6

Therefore, to disallow the $65,000 credit received from the settlements would established.” 9 R. McNamara, attributable to him.

and he shall be liable only for the damages

accident in the Durham Market Place. The plaintiffs’ writ states “[t]hat as a

represents the total amount of damages to which the plaintiffs are entitled. proximate cause of [a] single, indivisible harm, a common liability . . . is The arbitrator’s response clearly states that the $250,000 award

then that party's liability shall be several and not joint

Unlike common law and the plaintiffs’ pleadings, the injuries resulted from a single and Insurance Practice § 23.09, at 23-12 (2003). According to New Hampshire

action on the part of all sought to be charged; if the conduct of each is a Furthermore, “[t]o constitute a joint tort, there need not be concerted that if any party shall be less than 50 percent at fault, finding, the defendant is jointly and severally liable. finding that the defendant was less than fifty percent at fault. Absent such a and, pursuant to RSA 507:7-e, only severally liable, in this case there was no Nilsson, where the jury found the defendant to be one percent liable credit for the settlement received unless there is a finding of minimal fault. Therefore, a defendant is jointly and severally liable and entitled to a contributed to an accident.

basis of the rules of joint and several liability, except Enter judgment against each party liable on the

RSA 507:7-e, I(b) instructs the court to:

at 396.

allocation pursuant to RSA 507:7-e, I, between parties who have causally liability before settlement credit can be taken. Rather, they address fault DeBenedetto and Nilsson do not require a finding of joint and several

Neither Nilsson nor DeBenedetto is availing. CLD Consulting Eng’rs, 153 N.H. 793 (2006), to support their argument. among the tortfeasors. The plaintiffs rely upon Nilsson and DeBenedetto v. $65,000 credit for settlements because the arbitrator did not apportion fault The plaintiffs also argue that the defendant was not entitled to the defendant satisfied the arbitrator’s award. p. 7 costs. Therefore, we see no error in the trial court’s order finding that the against the plaintiffs. The defendant should not bear the plaintiffs’ litigation

plaintiffs’ voluntary settlement was a result of Hannaford’s independent claim that we received from earlier defendants.”

subsequent settlement with Hannaford. We agree with the defendant that the Hannaford’s cross-claim against the plaintiffs, nor did it participate in the of course, be entitled to a credit should we prevail relative to the settlements for such a reduction. Furthermore, the defendant was not a party to

March 6, 2003, prior to the arbitration, acknowledging that the defendant “will, the defendant’s credit to $57,000. On appeal, the plaintiffs cite no authority

includes a letter written to the defendant’s counsel by the plaintiffs’ counsel on plaintiffs assert that their $8,000 settlement with Hannaford Brothers reduced

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

the plaintiffs. Although not expressly relied upon by the trial court, the record that amount was not the actual “consideration” received in the settlement. The Finally, we note that the result herein can hardly come as a surprise to

wrongdoers for the same injury.”); one compensation. He is not entitled to full damages from each of several the concurring negligence of two or more persons is not entitled to more than

the plaintiffs’ award, the trial court erred by reducing the award by $65,000, as for the release.”); The plaintiffs also argue that even if RSA 507:7-h required a reduction in

nonsettling tortfeasor(s).”). contributed to the same injury – reduce any judgment later secured against the the plaintiff from one of several joint tortfeasors – those who actively F.3d 5, 7 (1st Cir. 1997) (“In almost all jurisdictions, settlement payments to

usually conceded that one who has suffered a single personal injury caused by

Carpenter v. Company, 78 N.H. 118, 119 (1916) (“[I]t is

does reduce the claim against the others to the extent of the consideration paid Morrill v. Webb, 123 N.H. 276, 279 (1983) (“[T]he settlement with one tortfeasor arbitrator’s award, and established New Hampshire law and practice. See permit a windfall and would be contrary to a majority of jurisdictions, the