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NO.

95-093

IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

DAVID C. HOLMBERG and KAROL M. HOLMBERG, Plaintiffs,

v.
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..* CJ a t k ~ ~ & . t . : * . , RICHARD A. STRONG, STRONG'S CRANE SERVICE, INC., RICHARD E. LUTTON and CROWN PARTS AND MACHINE, ~ ~ %'ffaTE?QP NIBHPPM " d l . Defendants,
RICHARD E. LUTTON and CROWN PARTS AND MACHINE, INC., Cross-claimants
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$5.1

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Appellants,

v.
RICKARD A. STRONG and STRONG'S CRANE SERVICE, INC., Cross-Defendants & Respondents.

APPEAL FROM:

District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Russell K. Fillner, Judge presiding.

COUNSEL OF RECORD: For Appellants: James L. Jones, Dorsey Billings, Montana For Respondents: Michael W. Tolstedt, Brown, Gerbase, Cebull, Fulton, Harman & Ross, Billings, Montana
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Whitney,

Submitted on Briefs: Decided: Filed:

June 8, 1995 August 3, 1995

Justice Terry N. Trieweiler delivered the opinion of the Court. The plaint iffs , David C . Holmberg and Karol M. Holmberg, filed a complaint in the District Court for the Thirteenth Judicial District in Yellowstone County against the defendants, Richard A. Strong, Strong's Crane Service, Inc., Richard E. Lutton, and Crown Parts and Machine, Inc., in which they alleged that the defendantst negligently injured David and that they were jointly and severally liable for the couple's damages. Richard E. Lutton and Crown Parts and Machine, Inc. (referred to collectively as Crown Parts),

cross-claimed against Richard A. Strong and Strong's Crane Service, Inc. (referred to collectively as Strong's), for contribution. The District Court granted Strong's motion for summary judgment and held that Strong's was not liable to Crown Parts for contribution. Crown Parts appeals from the District Court's judgment and order. We affirm the District Court. The issue on appeal is: Did the District Court err when it granted Strong's motion for summary judgment? FACTUAL BACKGROUND On August 13, 1991, David Holmberg was driving his vehicle west on Highway 87 when he stopped his vehicle in order to make a left hand turn. Before he turned, David was hit from behind by a

truck driven by defendant Richard E. Lutton and owned by defendant Crown Parts. Prior to the collision, Richard A. Strong was driving a crane owned by Strong's in an easterly direction, and while

turning right off Highway 87, allegedly caused the boom of the crane to encroach into the westbound lane, distracting Lutton and contributing to the accident. On February 10, 1994, Holmbergs filed a complaint against Richard A. Strong, Strong's Crane Service, Inc., Richard E. Lutton, and Crown Parts and Machine, Inc. Their complaint alleged that the defendants negligently caused David's injuries and were jointly and severally liable. On February 28, 1994, Crown Parts filed its On

answer and a cross-claim against Strong's for contribution.

March 4 , 1994, Holmbergs and Crown Parts filed a joint motion for the District Court's approval of their settlement agreement,

dismissal of Holmbergs' complaint, and permission for Crown Parts to proceed with its cross-claim. On March 17, 1994, Holmbergs

signed a settlement agreement with Crown Parts. That same day the District Court approved the settlement and dismissed with prejudice Holmbergs' complaint against all defendants, but allowed Crown Parts to proceed with its cross-claim. In October 1994, Strong's moved for dismissal of Crown Parts' claim by summary judgment. In December 1994, the District Court that because Holmbergs had

granted Strong's motion and held

released all tort-feasors from liability, Strong's and Richard Strong are not parties against whom recovery is allowed pursuant to
5 27-1-703, MCA, and Sprinklev. BurlingtonNorthern (1989), 236 Mont. 383,

769 P.2d 1261.

Therefore, the court held that Crown Parts had no

right of contribution against Strong's or Richard Strong.

DISCUSSION Did the District Court err when it granted Strong's motion for summary judgment? Our inquiry on review of an order granting summary judgment is identical to that of the district court. Spain-Morrow Ranch, Inc. v. West (l994), 264 Mont. 441, 444, 872 P.2d 330, 331. Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

, Rule 56 (c) M.R.Civ.P.; Spain-Morrow, 872 P.2d at 331-32
Crown Parts requests that we reverse the District Court's judgment and, in so doing, expressly overrule Sprinkle. to do so. Montana has altered the common law and recognizes a statutory right to contribution. Section 27-1-703,MCA. In Senate Bill 212, the Fifty-Fourth Montana Legislature amended that it now provides in relevant part: (1) Except as provided in subsections (2) and (3), whenever the negligence of a party in any action is an issue, each party against whom recovery may be allowed is jointly and severally liable for the amount that may be awarded to the claimant but has the right of contribution from any other person whose negligence may have contributed as a proximate cause to the injury complained of.

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