2010-157 Alfred Ocasio v. Federal Express Corporation

Winer and Bennett, LLP

No. 2010-157

Hillsborough-southern judicial district

Corporation (FedEx). He argues that the Trial Court (Barry appeals the entry of judgment in favor of the defendant, Federal Express CONBOY, J. In this personal injury case, the plaintiff, Alfred Ocasio,

Desmarais, Ewing & Johnston, PLLC

was not error to allow the jury to apportion fault to the USPS, it was error to fault allocated to FedEx. See RSA 507:7-d, :7-e (2010). We hold that while it entered judgment for FedEx after comparing the fault allocated to him to the Service (USPS), and when, despite the jury’s $1,445,700 verdict in his favor, it allowed the jury to apportion fault to his employer, the United States Postal , J.) erred when it

defendant. and Heather G. Silverstein on the brief, and Mr. Johnston orally), for the

John V. Dwyer, Jr. orally), for the plaintiff.

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2 B. Recovery Against USPS

C. Lawsuit Against FedEx

cannot lift and carry heavy things. He has since lost his job at the USPS. surgery, it is of limited use. He cannot stand or walk for very long and he trial, the plaintiff moved in plaintiff did not name as a defendant the USPS, his immune employer. Before were shattered. Although the plaintiff’s leg was saved after reconstructive FedEx’s negligence caused his injuries. Consistent with the Federal Act, the had been pulling continued to roll toward him, the bones of his trapped leg The plaintiff sued FedEx for damages, alleging, among other claims, that gap between the rear of the truck and the loading dock. When the air can he tractor-trailer truck when he accidentally stepped into and caught his leg in a On February 17, p. 2 2002, the plaintiff was pulling air cans from a FedEx

essentially be punished for receiving benefits from his negligent employer.” He for his injuries to the USPS, arguing that if the jury were to do so, he “would

Federal Act). See approximately $80,353 under the Federal Employees ’ Compensation Act (the Due to his work-related accident, the plaintiff received benefits totaling liability,” 5 U.S.C.A. § 8131(a)(1). may have to share in money or other property received in satisfaction of that States any right of action he may have to enforce the liability or any right he U.S.C.A. § 813 p. 2 2; see also 20 C.F.R. § 10.711 (2010), or to “assign to the United a third party, less costs of the suit and a reasonable attorney’s fee, see 5 the United States any money he receives as a result of a suit or settlement from U.S.C.A. § 8116(c). Moreover, the Federal Act requires the plaintiff to refund to Act, these benefits are the plaintiff’s exclusive remedy against the USPS. See 5 5 U.S.C.A. §§ 8101 et seq. (2007). Pursuant to the Federal

I. Background 3,000 and 5,000 pounds. loading dock and into the USPS facility. The air cans typically weigh between allowing the USPS employees to roll the air cans from the trucks onto the affixed to the floor of the truck beds, as well as the floor of the loading dock, with mail (air cans) from delivery tractor-trailer trucks. Ball bearings were handler for the USPS. His job included pulling, by hand, large canisters filled The jury could have found the following facts. The plaintiff was a mail

A. The Accident

in part, and remand. deny the plaintiff any recovery against FedEx. We, thus, affirm in part, reverse less than 50 percent at fault, then that party’s liability shall be p. 3 rules of joint and several liability, except that if any party shall be (b) Enter judgment against each party liable on the basis of the

of each of the parties; and against each defendant in accordance with the proportionate fault find, the amount of damages to be awarded to each claimant and (a) Instruct the jury to determine, or if there is no jury shall

A. Apportionment of Fault

I. In all actions, the court shall:

apportionment of liability and contribution. DeBenedetto v. CLD Consulting tortfeasors. It is part of a comprehensive statutory framework for RSA 507:7-e governs apportionment of fault to both claimants and

1. DeBenedetto

(4%), the plaintiff was not entitled to recover any damages against FedEx. See plaintiff’s percentage of fault (6%) was greater than FedEx’s percentage of fault Eng’rs judgment in its favor, arguing that pursuant to RSA 507:7-d, because the, 153 N.H. 793, 798 (2006). It provides, in pertinent parts: USPS was ninety percent at fault. Thereafter, FedEx moved for entry of the plaintiff was six percent at fault, FedEx was four percent at fault, and the first, when it allowed the jury to apportion fault to the USPS, see The jury found the plaintiff’s damages to be $1,445,700, and found that On appeal, the plaintiff argues that the trial court erred in two respects:

II. Discussion

507:7-d, :7-e, I(b). because his degree of fault was found to be greater than FedEx’s, see RSA § 8116(c); and, second, when it ruled that recovery against FedEx was barred was immune from liability pursuant to the Federal Act, see 5 U.S.C.A. I(a), even though the USPS was not named as a defendant in the lawsuit and

RSA 507:7-d, :7-e, I(b). The trial court agreed, and this appeal followed.

any degree. verdict form requiring it to consider whether the USPS was legally at fault to employer.” The trial court denied the motion, and gave the jury a special reduce that recovery by imputing separate, independent liability upon his diminished by a worker’s compensation lien, . . . it is unfair to additionally explained: “Since any recovery [he] . . . might receive is already bound to be p. 4 4

contribution.” Jaswell Drill Corp. v. General Motors Corp. comprehensive approach to comparative fault, apportionment of damages, and RSA 507:7-e was enacted in 1986 as part of the legislature’s “unified and damages. DeBenedetto, 153 N.H. at 798. plaintiff’s injuries may be held responsible for the entire amount of recoverable and several liability, a defendant who is only minimally responsible for a 2. Legislative History of RSA 507:7-e and Prior Case Law joint and several liability. Id.; see Laws 1986, 227:2. Under the rule of joint required that judgment be entered against “each party liable” on the basis of DeBenedetto In DeBenedetto, 153 N.H. at 798. As originally enacted in 1986, RSA 507:7-e 1987), in its treatment of comparative fault and apportionment of damages.” closely modeled the Uniform Comparative Fault Act, 12 U.L.A. 38- p. 4 49 (Supp. The plaintiff in this case argues that our holding in DeBenedetto 45 (1987). “The ‛ Act Relative to Tort Reform and Insurance,’ Laws 1986, 227:2,

related in our prior cases, as well as our case law interpreting the statute. The DeBenedetto arguments, we begin by reviewing the legislative history of RSA 507:7-e, as immune non-party who contributed to the plaintiff’s loss. In addressing his not apply to the USPS even though it, like the DOT in DeBenedetto, is an should

plaintiff’s loss, including unnamed and immune non-parties. Id. at 798, 803. disagreed, and construed the terms to refer to all entities contributing to the parties actually involved in the case. DeBenedetto, 153 N.H. at 800. We words “party” or “parties,” as used in RSA 507:7-e, I, referred only to the plain language of RSA 507:7-e, I(a). Id. at 797. The plaintiff asserted that the jury to include Christous and the DOT when apportioning fault violated the

RSA 507:7-e, I(a), (b). dismissed before trial on grounds of immunity. Id. Department of Transportation (DOT), which was a named defendant, but was subsequent lawsuit. Id. The other non-party was the New Hampshire demand and Christous was not named as a defendant in the plaintiff’s husband’s car. Id. at 795. Christous’s insurance carrier paid damages upon party, Doris Christous, was the driver of the car that collided with the plaintiff’s instructed the jury to apportion fault to two non-parties. Id. at 797. One non- 80 p. 4 4. At issue in DeBenedetto was whether the trial court erred when it fault to an immune non-party, such as the USPS. DeBenedetto, 153 N.H. at

attributable to him. several and not joint and he shall be liable only for the damages p. 5 5

consideration of the fault of only the parties to an action would directly omitted). We concluded “that a rule of law limiting a jury or court to or otherwise not before the court.” Id. at 804 (quotation, citation and ellipsis the occurrence giving rise to an action, including those immune from liability parties to an action, including settling parties, but to all parties contributing to apportionment purposes under RSA p. 5 507:7-e, the word ‘party’ refers not only to In Nilsson named parties to the case.” Id. at 800. Therefore, we held that “for causing or contributing to the occurrence in question, whether or not they are that apportionment includes all tortfeasors who are causally negligent by either Specifically, we recognized that “true apportionment cannot be achieved unless for those defendants who are fifty percent or more at fault. Id. at 799. when it amended RSA 507:7-e in 1989 to require joint and several liability only decision in DeBenedetto was guided by the policy choice the legislature made affirmative in DeBenedetto. See DeBenedetto, 153 N.H. at 800-04. Our and apportionment schemes similar to ours, we answered this question in the non-settling tortfeasor. See Relying upon the reasoning of courts in jurisdictions with comparative fault 507:7-e permits a jury to apportion fault between a settling tortfeasor and a immune tortfeasor was a “party” for apportionment purposes. Id. at 397. Following this amendment, we had occasion to consider whether RSA, we expressly declined to reach the issue of whether an

defendant and one percent of fault to the non-settling defendant. Id. at 394. trial court’s verdict apportioning ninety-nine percent of fault to the settling including settling parties.” Id. (quotation and ellipsis omitted). We affirmed the apportionment purposes, the word “party” refers to “parties to an action the plaintiff before trial. Id. at 396. We disagreed, holding that for and several liability. Id “party,” as used in RSA p. 5 507:7-e, did not include a defendant who settled with 507:7-e “to treat fairly those entities which may be unfairly treated” under joint Nilsson, the plaintiff argued that the plain and ordinary meaning of the word New Hampshire followed this trend in 1989 when it amended RSA Nilsson v. Bierman, 150 N.H. 393, 395 (2003). In

percent at fault. See RSA p. 5 507:7-e, I(b). 507:7-e to impose only several liability on parties who are less than fifty rather than their fault,” N.H.S. Jour. 286 (1989), the legislature amended RSA targets for damage recoveries because of their potential monetary resources Recognizing that “manufacturers, professional and public agencies . . . become

inequities suffered by low fault, “deep pocket” defendants. p. 6 Id. at 799. As a result, numerous jurisdictions enacted legislation to ameliorate the be responsible for the entire amount of recoverable damages.” Id. at 798-99. a potentially low degree of fault who by virtue of joint and several liability may and sue only ‘deep pocket’ defendants – tortfeasors with significant assets but The joint and several liability rule enabled “injured plaintiffs to seek out Id

payments if a third party’s negligence caused the accident.

understanding that the employers’ insurers will get back those

injuries, even when the employer is not negligent, and with the

set benefits for lost wages and medical costs for all workplace

from lawsuits given in exchange for the employers having to pay

this by essentially taking away the employers’ present immunity fundamental premise of workers compensation law. It would do The change proposed by this amended legislation would violate a employers from apportionment under RSA 507:7-e. p. 6 Id. This amendment failed . Another legislator attempted to amend the legislation to exempt immune

intent that RSA 507:7-e applies to immune employers. See The failure of the 2009 legislation also reveals the legislature’s specific

O’Brien, speaking on behalf of those opposed to the amendment, explained: have received workers’ compensation.” p. 6 Id. at 876. Representative William L. lien on damages and benefits recovered from third persons by employees who apportionment of damages provisions under RSA 507:7-e from the employer’s “except[ed] the amount of damages attributed to the employer pursuant to the 76 (2009). As amended by a legislative committee, the 2009 bill would have goal. See N.H.H.R. Rep. 875- In 2009 and 2010, legislation was introduced to accomplish the same

non-parties as we held in DeBenedetto. further evidencing the legislature’s intent that RSA 507:7-e apply to immune Representatives, see N.H.H.R. Rep. 876 (2009); N.H.H.R. Rep. 1145 (2010), Bill 1255 (2010). Neither measure was passed by the New Hampshire House of specifically exempted immune entities from apportionment of damages. House before the court.” House Bill 197 (2009). The 2010 measure would have which fault could be apportioned “only against parties to an action who are measure would have amended RSA 507:7-e to add a new paragraph under The legislature’s response to DeBenedetto N.H.H.R. Rep. 875-76 (2009); N.H.H.R. Rep. 1145 (2010). The 2009

was sustained. See N.H.H.R. Jour. 1113, 1115 (2007). Jour. 113 (2007). The Governor vetoed this legislation, however, and his veto damages were to be apportioned. See N.H.S. Jour. 1832-33 (2007); N.H.H.R. define the word “party” to mean only those who were before the court when 2007, the legislature passed a bill that would have amended RSA 507:7-e to (subsequent legislative history, while not controlling, may be considered). In instructive. See Franklin v. Town of Newport, 151 N.H. 508, 512 (2004)

156 N.H. 202 (200 p. 7 7); Goudreault v. Kleeman, 158 N.H. 236 (2009). have applied DeBenedetto in subsequent cases. See Everitt v. Gen. Elec. Co., liability to those parties who are less than 50 percent at fault.” p. 6 Id. at 803. We undermine the New Hampshire legislature’s decision to assign only several 7

are based upon the fundamental quid way the benefits and burdens under either the Federal or State Act. Both acts We disagree that apportioning fault to immune employers affects in any Allocating fault to an immune employer does not disturb this quid

employer’s negligence, and the employer is still immune from liability. Indeed, underlying it. A plaintiff may still obtain benefits, without having to prove the quo relationship between employee and employer or the legislative policy

Bilodeau v. Oliver Stores, Inc., 116 N.H. 83, 86 (19 p. 7 76). right to sue [their employer].” Lockheed Aircraft Corp., 460 U.S. at 194; see regardless of fault and without need for litigation, but in return they lose the “employees are guaranteed the right to receive immediate, fixed benefits, Corp. v. United States, 460 U.S. 190, 193-94 (1983). Under both acts, Center, 152 N.H. 389, 395 (2005) (discussing State Act); Lockheed Aircraft exchange for no-fault workers’ compensation benefits. See Tothill v. Estate of

received under the applicable workers’ compensation law. See against another tortfeasor equal to the amount of benefits the employee and burdens under workers’ compensation laws. tortfeasors, have a statutory right to reimbursement from a plaintiff’s recovery apportion fault to immune employers upsets the delicate balance of benefits Because of these statutory provisions, he asserts that allowing a jury to third party to recover damages. See 5 U.S.C.A. § 8132; see also RSA 281-A:13. under certain circumstances, require an employee to bring an action against a the New Hampshire Workers’ Compensation Law (the State Act) allow and, less expenses and costs of action). He also notes that both the Federal Act and a. Whether Immune Employers Should Be Treated Compensation Law, employers have a lien on damages recovered by employee, § 8132; see also RSA 281-A:13, I(b) (2010) (under New Hampshire Workers’

why DeBenedetto to them. He observes that immune employers, unlike other immune Against this backdrop, we now consider the plaintiff’s arguments as to immune tortfeasors and, thus, different rules should govern apportioning fault The plaintiff first argues that immune employers are different from other 3. Whether DeBenedetto Applies to USPS

Differently

parties. the holding in DeBenedetto that liability may be apportioned to immune nonthat we should overrule DeBenedetto; rather, in effect, he seeks an exception to

should not govern this case. The plaintiff does not argue

Id. and the entire measure was “laid on the table,” with no further action taken. p. 8 8

protect minimally liable defendants.” Rodgers v. Colby’s Ol’ Place damages would contravene the legislative intent of RSA 507:7-e, which “is to More importantly, requiring FedEx to bear the entire cost of the plaintiff’s

we observed in DeBenedetto minimally at fault and the immune employer is nearly completely at fault. As plaintiff’s entire damage award, particularly when the non-employer is only defendant, such as FedEx in this case, should be responsible for paying a We are not persuaded that “fairness” dictates that a non-employer, 14 p. 8 8 N.H. 41,

loss.” DeBenedetto, 153 N.H. at p. 8 800 (quotation omitted). policy that should compel defendants to pay more than their fair share of the defendant who is 10% at fault paying 100% of the loss, and there is no social , “[t]here is nothing inherently fair about a

paid accomplish the legislative purpose of precluding “double recovery.” See to be reimbursed from any recovery for the amount of compensation benefits right to bring a third party action and the corresponding right of the employer recovery for his injuries. To the contrary, under the State Act, the employee’s his statutory right to bring a third party action is intended to afford him full Lorenzetti, 467 U.S. 167, 177 (19 p. 8 84). to minimize the cost of the program to the federal government. United States v. The plaintiff’s arguments are based upon his mistaken assumption that provisions in the Federal Act is not only to prevent double recoveries, but also double recovery.” Bilodeau, 116 N.H. at 87. The purpose of analogous compensation award and his common law recovery which would amount to a injured worker “should not be allowed to keep the entire amount of both his Rooney v. Fireman’s Fund Ins. Co. sued.” Pinnacle Bank v. Villa, 138 N.H. 637, 640-41 (1994). Thus, an not mean that a party is not at fault; it simply means that the party cannot be not destroy, or even affect, the employer’s immunity from suit. Immunity “does Contrary to the plaintiff’s assertions, allocating fault to an employer does

that the ultimate loss from wrongdoing should fall upon the wrongdoer”). N.H. at p. 8 87 (employee may proceed against a third party “based on the concept affect an employee’s right to proceed against a third party. See Bilodeau, 116 , 100 P.3d 1287, 1293 (Wyo. 2004). Nor does it

Id. (emphasis added). should not be assessed to supplement our system of workers’ compensation.” would benefit employers, and to some extent plaintiffs -- but third parties fault, since that would then be allocated to the third party.” Id. “This certainly the employee would have the possibility of recovering in tort for his employer’s allocation, “the third party would pay the employer’s cost of compensation, and the Mississippi Supreme Court, if employers were immune from fault Trucks, Inc. v. Tackett, p. 8 841 So. 2d 1107, 1115 (Miss. 2003). As pointed out by go against the spirit of the bargain between employers and employees.” Mack “[t]o immunize employers from fault allocation in third-party tort suits would addressing the constitutionality of amendments to the State Act. See p. 9 under workers’ compensation laws. His argument is based upon a line of cases to immune employers impermissibly reallocates the benefits and burdens The plaintiff argues that applying the apportionment of damages statute

b. Constitutional Claims

that it was preserved, and address its merits. has failed to preserve this claim for our review. We assume, without deciding, Article 15 of the New Hampshire Constitution. FedEx argues that the plaintiff USPS in the apportionment of fault violated his due process rights under Part I, various of his state constitutional rights. First, he argues that including the loss of consortium actions against employer by employee’s spouse was Young v. Prevue Products, Inc. The plaintiff next contends that apportioning fault to the USPS violated, 130 N.H. 84, 86-88 (1987) (amendment barring

tortfeasors. immune employers should be treated differently than other immune Thus, contrary to the plaintiff’s assertion, we do not conclude that

his reliance is misplaced. Although we cited a Tennessee case in Nilsson by subjecting defendants to liability in excess of their proportion of fault). immune employers should be exempt from apportionment under RSA 507:7-e, employers in apportionment process violates main purpose of comparative fault To the extent that the plaintiff relies upon Tennessee law to argue that America, 914 F. Supp. 216, 220 (N.D. Ill. 1995) (failure to include immune Trucks, Inc., 841 So. 2d at 1115; Northland Ins. Co. v. Truckstops Corp. of including employers, must be subject to apportionment of fault. See Mack approval two cases that stand for the proposition that all immune parties, N.H. at 800. Indeed, in DeBenedetto, 153 N.H. at 800, 801, we cited with doctrine of comparative fault. See Nilsson, 150 N.H. at 396; DeBenedetto, 153 parties and that to apportion fault to non-parties is compatible with the support of the observation that many jurisdictions allow apportionment to non- DeBenedetto, see Carroll v. Whitney, 29 S.W.3d 14, 21 (Tenn. 2000), it was in

tortfeasors fifty percent or more at fault.” Id. legislature “reserved the joint and several liability rule for application to with those of defendants bearing relatively low fault percentages,” the their degree of culpability.” Id. “[T]o balance the interests of injured plaintiffs pocket’ defendants targeted because of their financial resources rather than sought to alleviate the burden imposed by joint and several liability upon ‘deep of actual fault.” DeBenedetto, 153 N.H. at 807. “Specifically, the legislature involved in personal injury lawsuits from damages exceeding their percentage an underlying purpose of the 1989 amendment was to relieve defendants 44 (2002). “[T]he legislative history of RSA 507:7-e plainly demonstrates that p. 10 10

infringements upon access to courts. DeBenedetto remedies available and to guard against arbitrary and discriminatory N.H. CONST. pt. I, art. 14. The purpose of this provision is to make civil

disagree. Contrary to his assertions, Part I, Article 14 “does not eliminates the right to a remedy guaranteed under our constitution. We The plaintiff argues that RSA 507-7:e, as applied to injured workers,

promptly, and without delay; conformably to the laws. being obliged to purchase it; completely, and without any denial; property, or character; to obtain right and justice freely, without recourse to the laws, for all injuries he may receive in his person, guarantee that Every subject of this state is entitled to a certain remedy, by having Part 1, Article 14 of the New Hampshire Constitution provides:

process protection of the New Hampshire Constitution. See fault to an immune employer pursuant to RSA 507:7-e does not violate the due benefits and burdens under workers’ compensation laws. Thus, apportioning noted, apportioning fault to immune employers does not disturb the balance of under the State Act through its amendment. More importantly, as previously matter does not concern the legislature’s adjustment of benefits and burdens an equal protection test that we have overruled, see The plaintiff’s reliance upon this line of cases is misplaced. The instant workers] . . . to be treated differently from other injury victims.” Relying upon Constitution. The plaintiff argues that RSA 507:7-e, I, “causes [injured right to equal protection under Part I, Articles 2 and 12 of the New Hampshire The plaintiff 14. next asserts that apportioning fault to the USPS violated his for Justice, 154 N.H. at 762, we address only his argument under Part I, Article no argument under the equal protection test we currently use, see Cmty. Res. he raises under Part I, Article 14 of the State Constitution. Because he makes argument that is nearly identical to his third constitutional argument, which Manchester, 154 N.H. 748 (2007), the plaintiff articulates an equal protection N.H. 925, 932 (1980), overruled by Cmty. Res. for Justice v. City of

(quotations omitted). State Act, and the “fairness of the compensation scheme as a whole.” Id. has been violated, we consider “the totality of the benefits” allowed under the Instead, to determine whether the Due Process Clause of the State Constitution workers’ compensation statute is amended.” Rooney, 138 N.H. at 642. “there need not be a specific ‘give and take,’ or quid pro quo, each time a lien on claimant’s uninsured motorist benefits). In these cases, we held that (1994) (upholding constitutionality of amendment allowing employer’s insurer a constitutional); Rooney v. Fireman’s Fund Ins. Co., 138 N.H. 637, 642-43 p. 11 11

addressed. Supremacy Clause, he merely reiterates arguments that we have already recovery.” Although the plaintiff couches his arguments as arising under the reimbursed for worker’s compensation benefits paid out of any third party workers to third party actions and the federal government’s right to be in the . . . federal statute” and would “undermine” the statutory right “of federal basis of a state statute would contradict the clear employer immunity created The plaintiff contends that “[t]he invocation of employer fault on the

law. New Hampshire Health Care Assoc. v. Governor Article VI of the Federal Constitution gives Congress the power to preempt state 507:7-e in this case violated the Supremacy Clause. The Supremacy Clause of omitted). The plaintiff’s final constitutional argument is that the application of RSA and execution of the full purpose and objective of Congress.” Id We rejected a similar claim in DeBenedetto. (quotation requirements or where state law stands as an obstacle to the accomplishments impossible for a private party to comply with both state and federal actually conflict.” Id. (quotation omitted). “An actual conflict exists when it is in a particular field to the federal government; or (3) state and federal law Congress implicitly supplants state law by granting exclusive regulatory power preempted where: (1) Congress expresses an intent to displace state law; (2) (20 p. 11 11). “Under the Supremacy Clause of the Federal Constitution, state law is , 161 N.H. 378, 399

been deprived of his right to a remedy under the New Hampshire Constitution. third party defendant who bears responsibility for his injuries. He has not prevented from doing what he has done herein, which is to bring suit against a to recover from an immune non-party – his employer. However, he is not 153 N.H. at 805. Here, the plaintiff, like the plaintiff in DeBenedetto, is unable party, or cap the amount of damages that a plaintiff may seek.” DeBenedetto, for personal injuries, limit a plaintiff’s ability to bring an action against any because it does not “by its language, restrict a plaintiff’s right to seek a remedy apportioning fault to immune non-parties does not violate Part I, Article 14

party defendants. either the Federal or State Act and to bring common law claims against third employee maintains the right to obtain workers’ compensation benefits under the statutory or common law rights available to injured employees. An injured 523, 525 (1999). RSA 507:7-e, as applied to injured workers, does not restrict law rights applicable at the time of the injury. Trovato v. Deveau, 143 N.H. (1979). It only requires a remedy that conforms to the statutory and common (emphasis added); see Estate of Cargill v. City of Rochester, p. 11 119 N.H. 661, 665 all injured persons will receive full compensation for their injuries.” Id. used. In re Keelin B. p. 12 and, where possible, we ascribe the plain and ordinary meanings to words Generally, when construing statutes we first examine the language used,

scheme, In re Keelin B. isolation, but must construe them both in the context of the overall statutory We cannot construe the words “defendant” and “party” in RSA 507:7-d in

FedEx’s behalf. This was error. (and, thus, greater than FedEx’s fault), the trial court entered judgment on determined FedEx’s fault to be four percent and the plaintiff’s to be six percent could not be aggregated with FedEx’s fault. Accordingly, because the jury USPS due to its status as an immune party, and therefore that the USPS’s fault The trial court reasoned that recovery was not permitted against the

legislature sought to advance through that scheme, see Appeal of Wilson, 161 , 162 N.H. at ___, and in light of the policy the

(2010). a statute to effectuate an unjust result. See In re Alex C., 161 N.H. 231, 235 by the entire statutory scheme.” Id. (quotation omitted). We will not interpret understand the statutory language in light of the policy sought to be advanced better able to discern the legislature’s intent, and therefore better able to was not greater than the fault of the defendant isolation. Appeal of Wilson tort for death, personal injury or property damage, if such fault, 161 N.H. 659, 662 (2011). “In so doing, we are we interpret statutes in the context of the overall statutory scheme and not in plaintiff or plaintiff’s legal representative, to recover damages in (Emphases added.) Contributory fault shall not bar recovery in an action by any, 162 N.H. ___, ___ (decided May 12, 2011). Nevertheless,

RSA 507:7-d states: such allegation. of fault attributable to a party shall rest upon the party making general verdict. The burden of proof as to the existence or amount statute. We review the trial court’s construction of RSA 507:7-d de proportion to the amount of fault attributed to the plaintiff by to FedEx’s percentage of fault pursuant to RSA 507:7-d, the comparative fault defendant, but the damages awarded shall be diminished in award him any recovery against FedEx after it compared his percentage of fault in the aggregate if recovery is allowed against more than one The plaintiff’s second claim of error concerns the trial court’s failure to, or the defendants

Kenison v. Dubois, 152 N.H. 448, 451 (2005).

B. Comparative Fault p. 13 13

507:7-e, but could then shield itself from liability for any fault apportioned to an immune party under the apportionment statute, RSA only to the defendant named in a plaintiff’s civil suit, a defendant could have RSA 507:7-e. If we were to construe the words “party” and “defendant” to refer To construe RSA 507:7-d otherwise would render it incompatible with

fault was apportioned to them both. See USPS were parties to the occurrence that gave rise to the plaintiff’s injuries and conduct on the part of parties on both sides of a lawsuit.” Allen v. Dover Coaggregate FedEx’s fault with the fault of the USPS because both FedEx and the to “allocate more equitably the responsibility for injuries due to negligent under RSA 507:7-e. Accordingly, it was error for the trial court not to construction would undermine the purpose underlying RSA 507:7-d, which is used in RSA 507:7-d, applies to all entities whose fault has been apportioned comparative fault statute, RSA 507:7-d, even where it is a wrongdoer. Such a in the aggregate if recovery is allowed against more than one defendant,” as damages under the whether any are immune from liability. It follows that the phrase “defendants the fault of all entities to whom fault has been apportioned, regardless of e, we conclude that the aggregation of fault described in RSA 507:7-d includes Moreover, because RSA 507:7-d is the companion statute to RSA 507:7-

unless a contrary intention is clearly shown.” Appeal of Int’l Bhd. of Police id. at 803, 804. of a statute are to be given the same meaning in other parts of the statute meaning as it has in RSA 507:7-e. “Words used with plain meaning in one part statutory scheme, the word “party” in RSA 507:7-d must have the same Because RSA 507:7-d and RSA 507:7-e are part of an integrated

injuries. See DeBenedetto, 153 N.H. at 803, 804. suit, but must include any tortfeasor found to have caused the plaintiff’s 507:7-d, therefore, cannot be limited to the named defendants in the plaintiff’s case law interpreting that amendment, the word “defendant” as used in RSA (1986). In light of the 1989 amendment to RSA 507:7-e and our subsequent apportionment of fault was not allowed against non-parties. See RSA 507:7-e 1989. Its use of the term “defendants” dates back to a time when 803, 804. We note that unlike RSA 507:7-e, RSA 507:7-d was not amended in occurrence giving rise to the plaintiff’s injuries. See DeBenedetto, 153 N.H. at as in RSA 507:7-e, the word “party” means the parties to the transaction or Officers, 148 N.H. 194, 195 (2002) (quotation omitted). Thus, in RSA 507:7-d,

(quotation omitted). “those individuals or entities who are plaintiffs or defendants in the action.” Id. 804. The term “party,” therefore, as used in RSA 507:7-e, is not limited to the occurrence” giving rise to a plaintiff’s injuries. DeBenedetto, 153 N.H. at comparative fault statute, RSA 507:7-d), to refer to “all parties contributing to apportionment of fault statute, RSA 507:7-e (the companion statute to the N.H. at 662. In DeBenedetto, we interpreted the word “party” as used in the p. 14 14

overruling DeBenedetto Upon consideration of all of these factors, we cannot conclude that

“nonparties,” such as immune tortfeasors, when apportioning fault is neither is warranted. Permitting a jury to consider

Southeastern Pa. v. Casey, 505 U.S. 833, 854-55 (1992). application or justification. Id. at 505; see Planned Parenthood of come to be seen so differently, as to have robbed the old rule of significant a remnant of abandoned doctrine; and (4) whether facts have so changed, or “We do not lightly overrule a prior opinion.” State v. Duran principles of law have so far developed as to have left the old rule no more than a special hardship to the consequences of overruling; (3) whether related workability; (2) whether the rule is subject to a kind of reliance that would lend (1) whether the rule has proven to be intolerable simply in defying practical inform our judgment as to whether a decision should be overruled, including: As the dissent concedes, DeBenedetto Motor Vehicles, p. 14 149 N.H. 502, 504 (2003) (quotations omitted). Several factors with arbitrary and unpredictable results.” Jacobs v. Director, N.H. Div. of revision in every case, deciding cases becomes a mere exercise of judicial will governed by the rule of law, for when governing legal standards are open to 146, 153 (2008). “The doctrine of stare decisis demands respect in a society

request. years after it was decided, and despite the fact that the plaintiff makes no such us. Nevertheless, the dissent urges us to overrule DeBenedetto whether the plaintiff’s fault (six percent) barred him from recovery. See a mere five percent) with FedEx’s fault (four percent) for the purpose of determining is dispositive of the issue before Here, the trial court should have aggregated the USPS’s fault (ninety $57,828, plus statutory interest and allowable costs. the total damages found by the jury ($1,445,700); that is, in the amount of awarded in the plaintiff’s favor against FedEx in the amount of four percent of of the total damages found by the jury. Thus, judgment should have been the damages attributable to FedEx, see RSA 507:7-e, I(b), which is four percent FedEx is less than fifty percent at fault, the plaintiff’s damages are limited to USPS and FedEx, he is not barred from recovery, see id.; however, because 507:7-d. Because the plaintiff’s fault is less than the aggregated fault of the RSA

fault attributed to any other tortfeasor. 507:7-d, any fault attributed to the immune entity must be aggregated with the be apportioned to an immune entity; under the comparative fault statute, RSA construed together: Under the apportionment statute, RSA 507:7-e, fault may 489 (2007). Accordingly, we hold that RSA 507:7-d and RSA 507:7-e must be Residents Defending Their Homes v. Lone Pine Hunter’s Club, p. 15 155 N.H. 486, We cannot conclude that the legislature intended such an unjust result. See Recreational Softball League, p. 14 148 N.H. 407, 412 (2002) (quotation omitted). 15

concerned. See Hilton v. South Carolina Public Railways Comm’n, 502 U.S. aptly notes, stare decisis has special force when statutory interpretation is on the part of parties on both sides of a lawsuit”). Moreover, as the dissent “allocate more equitably the responsibility for injuries due to negligent conduct 507:7-i); Allen Neither are we persuaded by the dissent that DeBenedetto, 148 N.H. at 412-13 (noting that RSA 507:7-d also serves to (comprehensive statutory framework includes RSA 507:7-d through RSA liability. N.H.S. Jour. 286 (1989); see also Nilsson, p. 15 150 N.H. at 395 entities which may be unfairly treated” under the rule of joint and several apportionment of liability, and contribution – that is, “to treat fairly those underlying our comprehensive statutory framework for comparative fault, reason we cannot permit a construction that would undermine the purpose See Appeal of Thermo-Fisher Scientific, 160 N.H. 670, 672 (2010). For this particular provision, not in isolation, but together with all associated sections. explained, we interpret a statute to lead to a reasonable result and review a overruled on the basis of its interpretation of the relevant statutes. As we have should be

appeared to conclude.” incident will render the jury’s verdict less accurate, as the Plumb Court conclude that evidence regarding the culpability of all tortfeasors involved in an N.W.2d p. 15 151, 154 n.7 (Mich. Ct. App. 2001), we too can “find no logical basis to substantive right to recovery. See id. at 390. As in Smiley v. Corrigan, 638 discriminatory; nor, as previously discussed, does it infringe upon a plaintiff’s damages.” Id. at 390. RSA 507:7-e is not arbitrary, unreasonable, or improving the method of determining and fixing responsibility for fault and named as a party, was rationally related to “the legitimate legislative goal of damages, based upon actual fault, regardless of whether the tortfeasor was in which the court concluded that a statute requiring apportionment of more persuasive the reasoning of Haff v. Hettich, 593 N.W.2d 383 (N.D. 1999), nonparties is not rationally related to a legitimate governmental issue. We find 1011, 1021 (Mont. 1996), for the proposition that apportioning fault to this contention the dissent cites Plumb v. Fourth Jud. Dist. Court, 927 P.2d “unconstitutional” in that it violates substantive due process. In support of factors. Instead, it contends that our ruling in DeBenedetto is The dissent makes no argument specifically directed to any of the Jacobs

485 (Idaho 1984). named parties to the case. See Lasselle v. Special Products Co., 677 P.2d 483, causing or contributing to the occurrence in question, whether or not they are that apportionment includes all tortfeasors who are causally negligent by rationale for such a rule is that true apportionment cannot be achieved unless noted above, such is the rule in many jurisdictions. Moreover, the underlying an “abandoned doctrine,” nor impractical or unworkable. To the contrary, as under the Federal Employees’ Compensation Act, see p. 16 the USPS was not a named party in the lawsuit and was immune from liability first, when it instructed the jury to apportion fault to the USPS, even though The issue on appeal is whether the trial court erred in two respects:

DeBenedetto The trial court, understandably, relied upon this court’s decision in

lost his job at the USPS. long; he cannot lift and carry heavy things; and he cannot run. He has since reconstructive surgery, it is of limited use. He cannot stand or walk for very can rolled into his leg, shattering it. Although the plaintiff’s leg was saved after with another employee, the plaintiff’s right leg dropped into the gap, and the air truck and the loading dock. While pulling an air can from the FedEx truck decision, the plaintiff received nothing properly aligned with the loading dock, there was, in fact, a gap between the to apportion fault to two non-parties. Id defendant, Federal Express Corporation (FedEx). Because of the trial court’s. at 797. One non-party, Doris DeBenedetto and secured his vehicle. Although he thought that the back of the truck was The plaintiff, Alfred Ocasio, appeals from the entry of a judgment in favor of the was whether the trial court had erred when it instructed the jury DeBenedetto v. CLD Consulting Eng’rs Thompson. Thompson backed his truck up to the loading and receiving dock BROCK, C.J., retired, specially assigned under RSA 490:3, dissenting., 153 N.H. 793 (2006). At issue in while removing air cans from a FedEx tractor trailer truck driven by Adam when it instructed the jury to apportion fault to the USPS. See known as “air cans.” On February 17, 2002, the plaintiff was gravely injured His job included removing mail that was transported in large, heavy containers The plaintiff was a mail handler for the United States Post Office (USPS). necessitate a new trial, I address only this error. the jury to apportion fault to the USPS and because this error would 507:7-d (2010). Because I believe that the trial court should not have required FedEx because the jury found that he was more at fault than FedEx, see RSA (2007); and, again, when it ruled that the plaintiff could not recover against

Affirmed in part; reversed in RSA 490:3, dissented. DUGGAN, J., concurred; BROCK, C.J., retired, specially assigned under

stand. Respectfully, I dissent. jury. In my view, this fundamentally unfair result should not be allowed to , despite an award of $1.4 million by the

part; and remanded.

overrule DeBenedetto. 197, 205 (1991). For these reasons, we decline the dissent’s invitation to p. 17 507:7-e, I, referred only to the actual parties to the action. DeBenedetto The plaintiff argued that the words “party” or “parties,” as used in RSA

RSA 507:7-e, I(a), (b) (emphasis added).

unpredictable results.” Jacobs v. Director, N.H. Div. of Motor Vehicles case, deciding cases becomes a mere exercise of judicial will with arbitrary and the rule of law, for when governing legal standards are open to revision in every “The doctrine of stare decisis demands respect in a society governed by attributable to him. several and not joint and he shall be liable only for the damages I. In all actions, the court shall recognize the value of stability in legal rules,” however, “the doctrine of stare less than 50 percent at fault, then that party’s liability shall be was for that very reason doomed.” Id rules of joint and several liability, except that if any party shall be. at 504-05 (quotation omitted). “While we “whether the ruling has come to be seen so clearly as error that its enforcement (b) Enter judgment against each party liable on the basis of the previous holding, we do not decide the issue de novo; rather, we review N.H. 502, 504 (2003) (quotations omitted). Thus, when asked to reconsider a , 149

dimension, I believe that DeBenedetto should be overruled. participated, I would have dissented. Because the error is of constitutional Id. at 798, 803. In so doing, I believe that the court erred and, had I who contributed to the plaintiff’s loss, including unnamed and immune parties. N.H. at 800. The court disagreed, and construed the terms to refer to anyone , 153

language of RSA 507:7-e, I(a) (2010). Id include Christous and the DOT when apportioning fault violated the plain The plaintiff argued that the trial court’s instruction to the jury to of each of the parties; and against each defendant in accordance with the proportionate fault find, the amount of damages to be awarded to each claimant and (a) Instruct the jury to determine, or if there is no jury shall

in pertinent part:

grounds of immunity. Id. (DOT), which was a named defendant, but which was dismissed before trial on Id. The other non-party was the New Hampshire Department of Transportation Christous was not named as a defendant in the plaintiff’s subsequent lawsuit. car. Id. at 795. Christous’s insurance carrier paid upon demand, and Christous, was the driver of the car that collided with the plaintiff’s husband’s p. 18 18

I agree with the conclusion in DeBenedetto

concept of ordered liberty.” State v. Furgal conduct that shocks the conscience, or interferes with rights implicit in the jeopardized by the potential for disproportionately assigning liability to damages for which a defendant is truly proportionally responsible is 927 P.2d 1011, 1021 (Mont. 1996). A plaintiff’s right to recover the amount of to this legitimate governmental interest. See Plumb v. Fourth Jud. Dist. Court, DeBenedetto lawsuit and have no opportunity to defend themselves, is not rationally related I first address the constitutionality of RSA 507:7-e, I, as interpreted in however, that apportioning liability to non-parties, who are not named in a governmental interest. See DeBenedetto, 153 N.H. at 807-09. I believe, among those responsible for a plaintiff’s damages may involve a legitimate

(2007). Because it was not argued on appeal, the court in DeBenedetto McKenzie v. Town of Eaton Zoning Bd. of Adjustment, 154 N.H. 773, 778 “[S]ubstantive due process prevents the government from engaging in that legislation be rationally related to a legitimate governmental interest. (1st Cir. 2005). The rational basis test under the State Constitution requires Haas, 155 N.H. 612, 613 (2007); see also Medeiros v. Vincent, 431 F.3d 25, 32 154 N.H. 748 (2007), the court applies the rational basis test. See State v. overruled on other grounds by Cmty. Res. for Justice v. City of Manchester, injuries is an important substantive right, but is not a fundamental right), Carson v. Maurer, 120 N.H. 925, 931 (1980) (right to recover for personal When, as in this case, the interest at stake is not a fundamental right, see (quotation omitted); see United States v. Salerno, 481 U.S. 739, 746 (1987).

231 (1983), citing federal opinions for guidance only, see id. at 232-33.

, under the State Constitution, see State v. Ball, 124 N.H. 226,

violated substantive due process. In my opinion, it does. apportion liability to, and the court to enter judgment against, non-parties consider whether interpreting RSA 507:7-e, I(a), (b), to require a jury to

( p. 19 1965). reason dictates that a change be made.” Dean v. Smith, 106 N.H. 314, 3 p. 18 18 when constitutional interpretation is concerned). Here, “justice demands and decisis has special force when statutory interpretation is concerned, but less so Public Railways Comm’n, 502 U.S. 197, 205 (1991) (recognizing that stare outweigh those in favor of following stare decisis. See Hilton v. South Carolina dimension, I believe that the policies in favor of departing from precedent far omitted). Particularly when, as in this case, the error is of constitutional Mun. Assoc. Prop.-Liab. Ins. Trust, 147 N.H. 396, 400 (2002) (quotations the law does not require the continuance of recognized error.” Matarese v. N.H. decisis is not one to be either rigidly applied or blindly followed. The stability of 19

I need not consider whether it also would violate the Federal Constitution. See substantive due process under the New Hampshire Constitution. Accordingly, e, I, to require apportionment of fault or liability to non-parties violates For the above reasons, therefore, I conclude that interpreting RSA 507:7-

Furthermore, in my view, not only is the DeBenedetto

interpretation of RSA 507:7-e, I, unconstitutional, it is also wrong as a matter court’s

Ball, 124 N.H. at 237.

be effectively denied any meaningful recovery. Works, 689 N.E.2d 1057, 1083-84 (Ill. p. 19 1997). In such a case, the plaintiff may recovery the plaintiff receives from the third party. See Best v. Taylor Mach. and again because the immune employer must be reimbursed from whatever objective of fairly apportioning liability among parties. See because the jury has been allowed to apportion fault to the immune employer, from a third party, is particularly not rationally related to the State’s legitimate recovery from a third-party tortfeasor is unjustifiably reduced twice, once a statutory right to receive a portion of any recovery the plaintiff may obtain I believe that apportioning liability to an immune employer, who also has person, less expenses and costs of action). In such a case, the plaintiff’s carrier has lien on amount of damages recovered by employee from another I(b) (2010) (under New Hampshire Workers’ Compensation Law, employer or its refund to United States the compensation United States paid); RSA 281-A:13, therefrom the costs of suit and a reasonable attorney’s fee, beneficiary must money or other property as a result of suit or settlement, after deducting compensation from United States for injury or death to employee receives (2007) (under Federal Employees’ Compensation Act, if beneficiary entitled to 5 U.S.C.A. § 8132

nonpart[y], the greater the reduction in the [plaintiff’s] recovery.” Id Moreover, “[t]he greater the degree of fault that is assigned to [a]

percent at fault. instructed to apportion fault to the USPS, it found that FedEx was only four liable for the entire $1.4 million verdict. Because, however, the jury was fifty percent or more at fault, FedEx would have been jointly and severally attributable to him.” RSA 507:7-e, I(b). In this case, had FedEx been found party’s liability is several only and the party is liable “only for the damages damages, unless the party is less than fifty percent at fault. In that case, the RSA 507:7-e, I(b), each party is jointly and severally liable for the plaintiff’s . Under

nonetheless, found that it was ninety percent at fault for the plaintiff’s injuries. although the USPS was not named and had no ability to defend itself, the jury, a disproportionate share of liability.” Id. In the instant case, for example, the opportunity to appear and defend themselves, . . . are likely to be assigned See id. at 10 p. 20 20. Non-parties, who may lack legal standing and are “[w]ithout disinterested, unnamed, unrepresented and non-participating third parties. 20

Because I believe that DeBenedetto

constitutional issues that have arisen in the wake of the legislature’s adoption In conclusion, it is my view that the substantial statutory and

unless damages attributable to each party shall be determined by general verdict, “judgment against . . . parties.” Additionally, RSA 507:7-e, II directs that “the instance, like RSA 507:7-e, I(b), RSA 507:7-e, I(c) also refers to granting Other sections of RSA 507:7-e further evince this legislative intent. For

of the jury verdict, a new trial on damages would not be required. trial on liability only. As there has been no appellate challenge to the amount apportion liability to the USPS. I would therefore vacate and remand for a new non-parties, I would hold that the trial court erred by instructing the jury to 507:7-e, I, should not be interpreted to require apportionment of liability to

does not A.2d 608, 612 (Conn. App. Ct. 1994). currently or have been previously before the court in a particular action -- and and “parties” refer only to the parties to the action. See “parties” as used in RSA 507:7-e, I, is confined to litigants -- those who are Bradford v. Herzig, 638 interpreted, makes clear that for apportionment purposes, the words “party” In my opinion, the plain and ordinary meaning of the words “party” and right to a fair trial. The language used throughout RSA 507:7-e, strictly as to the form of the verdict slip presented to the jury, and only a litigant has a fair trial.” (Emphasis added.) Necessarily, only a litigant can agree or disagree must be clear and concise “and shall not prejudice the rights of any party to a the parties agree otherwise” and cautions that questions to the jury

defendant. 507:7-e, I(b), the word “party” must also refer to each claimant and each cannot enter judgment against a non-party. Accordingly, as used in RSA trial court to “[e]nter judgment against each party.” (Emphasis added.) A court refers to “each claimant” and “each defendant.” RSA 507:7-e, I(b) instructs a (Emphases added.) Thus, as used in RSA 507:7-e, I(a), the word “parties” defendant in accordance with the proportionate fault of each of the parties.” “amount of damages to be awarded to each claimant and against each

extend to non-parties. RSA 507:7-e, I(a) specifically refers to the

( p. 20 2009). construed. See id.; see also Goudreault v. Kleeman, 158 N.H. 236, 253-55 are in derogation of the common law right to recover, are to be strictly statutory interpretation de novo. Id. Statutes, such as RSA 507:7-e, I, which and ordinary meanings to the words used. Id. It reviews the trial court’s examines the language of the statute, and, where possible, ascribes the plain Coan v. N.H. Dep’t of Env’t Servs., 161 N.H. 1, 5 (2010). The court first legislature as expressed in the words of the statute considered as a whole. of statutory interpretation. This court is the final arbiter of the intent of the p. 21 21

been greatly diminished in the process. perhaps, unintended consequences. Plaintiffs’ rights to a fair recovery have of RSA 507:7-e, I, have led the court into a jungle of unanticipated and,