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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Belknap
No. 95-850
PIKE INDUSTRIES, INC. & a.
v.
HILTZ CONSTRUCTION, INC.
September 24, 1998
Sulloway & Hollis, of Concord (Warren C. Nighswander on the brief and orally), for the plaintiffs.
Devine, Millimet & Branch, P.A., of Manchester (Andrew D. Dunn and Julie A. Dascoli on the brief, and Ms. Dascoli orally), for the defendant.
THAYER, J. This case arises out of an action for contribution brought by the plaintiffs, Liberty Mutual Insurance Co. and Pike Industries, Inc. (Pike), against Hiltz Construction, Inc. (Hiltz) in which the Superior Court (Smukler, J.) ruled in favor of the plaintiffs in the amount of $75,000. Hiltz presents two issues for our review. First, Hiltz argues that the superior court erred by assigning liability based on "theories" allegedly not argued by the plaintiffs, but raised sua sponte by the court. Second, Hiltz asserts that the court erred in its computation of the amount of contribution. We affirm.
A personal injury action underlies this case. On March 26, 1991, a dump truck operated by Pike was waiting to enter a dump site operated by Hiltz. Due to muddy conditions at the entrance of the site, a back-up of several trucks had occurred. The trucks waited in the road, blocking the westbound lane to all traffic. The Pike truck, then at the end of the line, proceeded to pass the line of parked trucks and eventually stopped, blocking the entire eastbound lane. Lila Shores, who was driving eastbound, collided head on with the stopped truck.
Shores sued Pike for injuries sustained in that collision. The plaintiffs settled the case by paying Shores $175,000 in exchange for Shores releasing the plaintiffs and Hiltz from all liability. Hiltz was not a party to that action. The plaintiffs then brought the instant action seeking contribution from Hiltz for Hiltz' comparative share of fault in causing the accident.
After a hearing on the merits, the trial court found Shores thirty percent liable, Pike forty percent liable, and Hiltz thirty percent liable for the accident. The court found the settlement entered into between the plaintiffs and Shores to be reasonable. The court calculated that the total value of the case was $250,000. The court reasoned that the settlement amount was consistent with the total value of the case, in light of Shores being thirty percent at fault. Where the settlement was $175,000, the court reasoned that $250,000 would represent a fair estimate of the total value of the case. The court then awarded the plaintiffs $75,000, representing Hiltz' thirty percent share of liability in a case worth $250,000.
The court articulated three reasons for Hiltz' liability. It assigned a ten percent share of responsibility to each rationale or "theory," respectively. Those rationales include (1) Hiltz failed to recognize the difficulty in entering the dump site and failed to implement any plan as to what the trucks should do; (2) Hiltz' driver caused the initial tie-up by blocking the road; and (3) Hiltz' driver failed to provide traffic control once the tie-up became apparent. Hiltz disputes the validity of the rationales.
On appeal, Hiltz argues that the trial court committed reversible error by raising "theories of liability" not disclosed in pretrial pleadings nor developed by counsel for the plaintiffs. Hiltz also contends that the court applied an improper methodology in calculating damages. We begin by addressing Hiltz' argument regarding the allegedly erroneous "theories of liability."
"It is well settled that a defendant is entitled to be informed of the theory on which the plaintiffs are proceeding and the redress that they claim as a result of the defendant's actions." Morancy v. Morancy, 134 N.H. 493, 497, 593 A.2d 1158, 1160 (1991) (quotation omitted). New Hampshire maintains a system of notice pleadings. See Welch v. Gonic Realty Trust Co., 128 N.H. 532, 536, 517 A.2d 808, 810 (1986). As such, we take a liberal approach to the technical requirements of pleadings. See 4 R. Wiebusch, New Hampshire Practice, Civil Practice and Procedure