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IN THE SUPREME COURT OF IOWA
No. 95 / 04-1825 Filed December 8, 2006 NICHOLAS REILLY, DENNIS REILLY, and MARCIA REILLY, Appellees, vs. CHRISTOPHER J. ANDERSON, MICHAEL M. ANDERSON, and IMT INSURANCE COMPANY, Appellants, ALAN J. NAUGHTON and RICHARD NAUGHTON, Appellees. ________________________________________________________________________ Appeal from the Iowa District Court for Story County, William J. Pattinson, Judge.

Appeal and cross-appeal from district court judgment following a jury verdict against tortfeasors and an insurer under an underinsured motorist benefits provision. REVERSED AND REMANDED.

John B. Grier of Cartwright, Druker & Ryden, Marshalltown, for appellant IMT Insurance Company.

Brian Yung of Klass Law Firm, L.L.P., Sioux City, for appellant Andersons.

John M. Trewet of Rutherford, Trewet & Knuth, Atlantic, for appellee Reillys.

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William H. Roemerman of Crawford, Sullivan, Read & Roemerman, P.C., Cedar Rapids, for appellee Naughtons.

3 CADY, Justice. In this case, we must primarily decide whether the theory of concerted action is compatible with our statutory comparative fault principles. We hold the theory of concerted action, despite requiring joint and several liability among concerted actors, is compatible with Iowa's Comparative Fault Act (CFA). We reverse the district court's decision

holding otherwise, and remand for a new trial. I. Background Facts and Proceedings.

On August 11, 2000, Christopher Anderson (Anderson), Alan Naughton (Naughton), and Nicholas Reilly (Reilly) set out in a Jeep owned by Anderson's father to go fishing at a pond outside

Marshalltown.

Anderson drove, Naughton rode as the front seat

passenger, and Reilly sat in the back. On the way to the pond, Anderson produced a marijuana water bong. He asked Naughton to hold the

steering wheel for him so he could take a hit off the bong. Naughton grabbed the steering wheel of the vehicle with his hand from his passenger seat position while the car was traveling at 50-55 miles an hour. During this time, control of the vehicle was lost and the vehicle crashed into the ditch. Reilly was severely injured. Reilly and his parents (the Reillys) sued Anderson and his father (the Andersons); Naughton and his father, Richard Naughton, who owned some equipment that was unsecured in the cargo area of the Jeep when it crashed; and IMT Insurance Company (IMT), the Reillys' underinsured motorist insurance carrier. Richard Naughton obtained summary

judgment as to his nonliability, and the case proceeded to trial against the remaining parties.

4 The jury returned a verdict finding Anderson sixty percent at fault, and Naughton and Reilly both twenty percent at fault. The jury found Reilly sustained $345,000 in damages, and his parents incurred $202,030.09 in damages. All parties filed post-trial motions regarding the district court's entry of judgment. IMT, the Andersons, and the Reillys moved to enter judgment against Naughton and Anderson jointly and severally for the damages (reduced, of course, by Reilly's twenty percent fault). Naughton, on the other hand, moved for judgment notwithstanding the verdict or, in the alternative, a new trial. Naughton argued in his motion for JNOV there was no evidence he knew Anderson's conduct was negligent. In his alternative argument, Naughton made three claims for a new trial. First, there was no evidence he knew Anderson's conduct was negligent. Second, IMT was severed from trial and then rejoined as an interested party. Third, the court would violate Iowa Code section 668.3(5) (2005) by entering judgment against him and Anderson jointly. 1 The Andersons also filed a motion for a new trial. They argued the court erred in failing to instruct the jury on a joint-enterprise theory, and on Reilly's failure to mitigate damages. Finally, IMT filed a conditional motion for new trial, arguing the court erred in failing to submit its requested instructions to the jury.

1Section 668.3(5) provides: "If the claim is tried to a jury, the court shall give instructions and permit evidence and argument with respect to the effects of the answers to be returned to the interrogatories submitted under this section." Iowa Code

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