Estate of Powell v. Montange

E statE of DEnnis PowEll , by anD through D ouglas PowEll
anD tracy PowEll , sPEcial aDministrators , Et al .,
aPPEllEEs , v. scott a. montangE Et al .,
DEfEnDants anD thirD-Party Plaintiffs ,
aPPEllants , anD sharon K lEin,
thirD-Party DEfEnDant, aPPEllEE.
765 N.W.2d 496
Filed May 22, 2009. 	No. S-08-281.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, and the court gives that party the benefit of all
reasonable inferences deducible from the evidence.
3. Contribution: Words and Phrases. Contribution is defined as a sharing of
the cost of an injury as opposed to a complete shifting of the cost from one to
another, which is indemnification.
4. Liability: Contribution. Generally, a common liability must exist in order
for there to be contribution. That is to say, each party must be liable to the
same person.
5. Liability: Contribution: Compromise and Settlement. A tort-feasor who enters
into a settlement with a claimant is not entitled to recover contribution from
another tort-feasor whose liability for the injury or wrongful death is not extin-
guished by the settlement nor in respect to any amount paid in a settlement which
is in excess of what was reasonable.
6. Liability: Contribution. In order to recover on a claim for contribution among
joint tort-feasors, the following elements must be shown: (1) There must be a
common liability among the party seeking contribution and the parties from
whom contribution is sought; (2) the party seeking contribution must have paid
more than its pro rata share of the common liability; (3) the party seeking contri-
bution must have extinguished the liability of the parties from whom contribution
is sought; and (4) if such liability was extinguished by settlement, the amount
paid in settlement must be reasonable.
7. Contribution: Equity. The doctrine of contribution is an equitable doctrine
which requires that persons under a common burden share that burden equitably.
Appeal from the District Court for Cass County: ranDall l.
rEhmEiEr, Judge. Affirmed.
Elizabeth M. Callaghan and Thomas A. Grennan, of Gross &
Welch, P.C., L.L.O., for appellants.
846 	277 NEbrASkA rEPOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

brian D. Nolan, of Nolan, Olson, Hansen, Lautenbaugh &
buckley, L.L.P., for appellee Sharon klein.
hEavican, 	c.J., 	wright, 	connolly, 	gErrarD, 	stEPhan,
mccormacK, and millEr-lErman, JJ.
wright, J.
NATUrE OF CASE
Dennis Powell (Powell), a passenger in a vehicle driven by
Scott A. Montange, died as a result of injuries sustained in a
motor vehicle accident. Powell’s estate sued Montange and the
vehicle’s owners, Jerry Sand and Liz Sand (collectively defend-
ants). The defendants filed a third-party complaint for contribu-
tion against Sharon klein, the driver of a second vehicle that
they alleged was a cause of the accident. The defendants settled
with Powell’s estate and obtained a limited release which stated
that klein was not a party to the settlement.
klein moved for summary judgment, claiming that the
defendants could not seek contribution from her. The district
court granted klein’s motion, and the defendants appeal.
SCOPE OF rEVIEW
[1,2] Summary judgment is proper if the pleadings and
admissible evidence offered at the hearing show that there
is no genuine issue as to any material facts or as to the ulti-
mate inferences that may be drawn from those facts and that
the moving party is entitled to judgment as a matter of law.
Jardine v. McVey, 276 Neb. 1023, 759 N.W.2d 690 (2009). In
reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom
the judgment was granted, and the court gives that party the
benefit of all reasonable inferences deducible from the evi-
dence. Id.
FACTS
On August 13, 2003, Powell was a passenger in a truck
driven by Montange. The truck was southbound on 12th
Avenue, a county road in Cass County, Nebraska. As the
truck approached the crest of a hill, Montange allegedly met
a northbound vehicle driven by klein. Montange took evasive
ESTATE OF POWELL v. MONTANGE 	847
Cite as 277 Neb. 846

action to avoid a collision but lost control. The truck went
into a ditch and landed on its roof. Powell was ejected from
the truck and sustained injuries that resulted in his death on
September 8. Powell’s estate, through its special adminis-
trators, Douglas Powell and Tracy Powell (collectively the
Estate), sued the defendants.
The Estate alleged that Montange was negligent in failing
to keep the vehicle he was driving under control, traveling
at an excessive rate of speed, failing to keep a proper look-
out, and failing to drive on the right side of the road and that
Montange’s negligence was imputed to the Sands. The Estate
filed no action against klein.
The defendants filed a third-party complaint against klein.
They alleged that the accident was caused by klein’s negli-
gence in crossing the centerline on the road, failing to stop
or swerve to avoid the near impact with the vehicle driven
by Montange, and failing to slow down and pull over once
she realized that the Montange vehicle was approaching from
the opposite direction. The defendants asserted that they were
entitled to contribution from klein.
As a result of their settlement with the Estate, the defendants
sought contribution from klein for all sums which exceeded
any proportionate share of their negligence and asked that the
trier of fact apportion klein’s negligence. klein answered,
alleging that the defendants had entered into a limited release
with the Estate which covered only the parties identified in the
release and that the release could not serve as a basis for con-
tribution against klein.
The release, which was signed by the Estate in Douglas
Powell’s and Tracy Powell’s capacities as individuals and as
special administrators, stated:
Nothing in this Release is to be construed as a release
of . . . klein, either by [the Estate] or [Montange, the
Sands, and the Sands’ insurer]. [The Estate] specifically
understands and acknowledges that . . . Montange [and
the Sands] have an outstanding claim against . . . klein
and nothing in this Release is to be construed as a dis-
charge or waiver of the claims of . . . Montange [and
the Sands] against . . . klein. Furthermore, [the Sands]
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and [their] counsel agree to cooperate with [Montange,
the Sands, and the Sands’ insurer] as to the third-party
action which will remain on file in the Cass County
District Court.
The settlement payment was $400,000, with a reimbursement
claim to the State of Nebraska in the amount of $70,405.86.
The district court sustained klein’s motion for summary
judgment and dismissed the defendants’ action for contribu-
tion. The court identified the following material facts which
were undisputed: Powell was a passenger in a vehicle driven
by Montange on August 13, 2003, and died as a result of
the accident; the Estate and the defendants entered into a
limited release; and klein was not a released party in the lim-
ited release.
The district court determined that the defendants were barred
from seeking contribution from klein because she was not a
party to the settlement between the Estate and the defendants
and had not been released from liability to the Estate. The
court concluded that klein received no benefit from the settle-
ment and remained exposed to a lawsuit. It found that there
were no material issues of fact with regard to the defendants’
claim against klein on the basis of contribution and that klein
was entitled to judgment as a matter of law.
ASSIGNMENTS OF ErrOr
The defendants assign as error the district court’s grant of
summary judgment and its finding that the defendants could
not seek contribution from klein.
ANALYSIS
[3,4] The issue is whether the defendants can maintain an
action for contribution against klein. “Contribution is defined
as a sharing of the cost of an injury as opposed to a complete
shifting of the cost from one to another, which is indemnifica-
tion.” Cerny v. Todco Barricade Co., 273 Neb. 800, 807, 733
N.W.2d 877, 885 (2007).
The prerequisites to a claim for contribution are that the
party seeking contribution and the party from whom it
is sought share a common liability and that the party
seeking contribution has discharged more than his fair
ESTATE OF POWELL v. MONTANGE 	849
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share of the common liability. 18 C.J.S. Contribution
§ 5 (1990). . . . In other words, a common liability
to the same person must exist in order for there to
be contribution.
Smith v. Kellerman, 4 Neb. App. 178, 185-86, 541 N.W.2d 59,
65 (1995). “[G]enerally, a common liability must exist in order
for there to be contribution. That is to say, each party must be
liable to the same person.” Teegerstrom v. H. J. Jeffries Truck
Line, 216 Neb. 917, 921, 346 N.W.2d 411, 414 (1984).
Other than the above pronouncements, this court has said
very little regarding contribution among joint tort-feasors. We
have held that there is no absolute bar to contribution among
joint tort-feasors. See Royal Ind. Co. v. Aetna Cas. & Sur. Co.,
193 Neb. 752, 229 N.W.2d 183 (1975) (Royal Indemnity). “[A]
right to equitable contribution exists among judgment debtors
jointly liable in tort for damages negligently caused, which
right becomes enforceable on behalf of any party when he dis-
charges more than his proportionate share of the judgment.” Id.
at 764, 229 N.W.2d at 190.
In Reese v. AMF-Whitely, 420 F. Supp. 985 (D. Neb. 1976),
the federal court discussed the law of contribution in Nebraska.
The court stated:
The statement [from Royal Indemnity] that “there is no
absolute bar to contribution among negligent joint tort-
feasors” would seem to encompass both those against
whom a plaintiff has successfully obtained a judgment
and those whose liability remains to be fixed either in a
cross claim or third-party claim in the original plaintiff’s
suit or in an independent action for contribution by the
original defendant.
Reese, 420 F. Supp. at 987.
In Rawson v. City of Omaha, 212 Neb. 159, 163, 322 N.W.2d
381, 384 (1982), we stated, “[G]enerally, in order for a party
to recover contribution after a settlement of a claim by one of
the parties, there must be a common liability proved to exist
between both the party settling the claim and the party from
whom contribution is being sought.”
In Northland Ins. Co. v. State, 242 Neb. 10, 492 N.W.2d
866 (1992), we affirmed the Reese court’s interpretation of
850 	277 NEbrASkA rEPOrTS

Nebraska law that the right of contribution would encompass
both those against whom a plaintiff has successfully obtained a
judgment and those whose liability remains to be fixed.
Although this court has recognized a right of contribution
among joint tort-feasors who share a common liability, we have
not specifically addressed whether a tort-feasor who enters into
a settlement with the claimant can recover contribution from
another tort-feasor whose liability for the injury or wrongful
death is not extinguished by the settlement.
Nebraska has no legislation governing contribution among
joint tort-feasors. A number of states have adopted a form of
legislation regulating contribution. Some states have adopted
the Uniform Contribution Among Tortfeasors Act (UCATA) or
a variation of it. The UCATA provides, in part, that “where two
or more persons become jointly or severally liable in tort for
the same injury to person or property or for the same wrong-
ful death, there is a right of contribution among them even
though judgment has not been recovered against all or any of
them.” UCATA § 1(a), 12 U.L.A. 201 (2008). See, e.g., Ariz.
rev. Stat. Ann. §§ 12-2501 to 12-2509 (2003); Ark. Code Ann.
§ 16-61-202 (2005); Colo. rev. Stat. Ann. §§ 13-50.5-101
to 13-50.5-106 (West 2005); Del. Code Ann. tit. 10, § 6302
(1999); Fla. Stat. Ann. § 768.31 (West 2005); Haw. rev. Stat.
§§ 663-11 to 663-17 (1993 & Cum. Supp. 2008); Mass. Gen.
Laws Ann. ch. 231b, §§ 1 to 4 (West 2000); Mich. Comp.
Laws Ann. § 600.2925a (West 2000); Nev. rev. Stat. § 17.225
(2007); N.H. rev. Stat. Ann. § 507:7-f (1997); N.M. Stat. Ann.
§ 41-3-2 (LexisNexis 1996); N.C. Gen. Stat. § 1b-1 (2007);
N.D. Cent. Code § 32-38-01 (1996); Ohio rev. Code Ann.
§ 2307.25 (LexisNexis 2002); Okla. Stat. Ann. tit. 12, § 832
(West 2000); Or. rev. Stat. § 31.800 (2007); 42 Pa. Stat.
Ann. §§ 8321 to 8327 (West 2007); r.I. Gen. Laws § 10-6-5
(1997); S.C. Code Ann. § 15-38-20 (1977); S.D. Codified Laws
§ 15-8-12 (2004); Tenn. Code Ann. § 29-11-101 et seq. (2000);
Va. Code Ann. § 8.01-35.1 (2007). This legislation corre-
sponds with our recognition of a right of contribution as set
forth above.
However, the UCATA also places limits on the right of
contribution. Only a tort-feasor who has paid more than his or
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Cite as 277 Neb. 846

her pro rata share of the common liability may seek contribu-
tion, and recovery is limited to the amount paid in excess of
his or her pro rata share. No tort-feasor is compelled to make
contribution beyond his or her own pro rata share of the entire
liability. UCATA § 1(b), 12 U.L.A. 201. This also corresponds
with our requirement set forth in Royal Indemnity.
[5] The right of contribution is not available in all instances
or circumstances. The UCATA places restrictions on contribu-
tion if a settlement has been entered into.
A tortfeasor who enters into a settlement with a claimant
is not entitled to recover contribution from another tort-
feasor whose liability for the injury or wrongful death is
not extinguished by the settlement nor in respect to any
amount paid in a settlement which is in excess of what
was reasonable.
UCATA § 1(d), 12 U.L.A. at 202.
In Schuman v. Vitale, 144 Pa. Commw. 560, 564, 602 A.2d
390, 392 (1992), the court determined that the state’s UCATA
meant that
where there are two or more joint tort-feasors and one of
them settles with the injured person, such settling joint
tort-feasor may not recover contribution from the other
non-settling joint tort-feasors unless the settlement by the
settling joint tort-feasor extinguishes the liability of the
non-settling joint tort-feasor to the injured person.
See, also, King v. Humphrey, 88 N.C. App. 143, 362 S.E.2d
614 (1987).
Other states have adopted the Uniform Comparative Fault
Act (UCFA), which also places limits on the right of contribu-
tion. It allows, in part, a right of contribution among joint tort-
feasors who are jointly and severally liable whether or not judg-
ment has been entered against any or all of them. UCFA § 4(a),
12 U.L.A. 142 (2008). Under the UCFA, contribution is “avail-
able to a person who enters into a settlement with a claimant
only (1) if the liability of the person against whom contribution
is sought has been extinguished and (2) to the extent that the
amount paid in settlement was reasonable.” UCFA § 4(b), 12
U.L.A. at 142. See, e.g., Iowa Code Ann. § 668.5 (West 1998);
Wash. rev. Code Ann. § 4.22.040 (West 2005).
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Iowa has adopted comparative fault legislation that includes
a substantial adaptation of the UCFA. See Aid Ins. Co. v. Davis
County, 426 N.W.2d 631 (Iowa 1988). The relevant Iowa stat-
ute permits contribution when there is a settlement if the liabil-
ity of the second tort-feasor has been extinguished and only to
the extent that the amount paid in settlement was reasonable.
Id. If judgment has not been rendered, the statute allows con-
tribution only if the person bringing the action for contribu-
tion has “‘discharged the liability of the person from whom
contribution is sought by payment made within the period of
the statute of limitations applicable to the claimant’s right of
action . . . .’” Id. at 632, quoting Iowa Code Ann. § 668.6(3)(a)
(West 1998).
because Nebraska has no legislative parameters governing
contribution, we proceed in the general direction of decisions
by this court which have stated (1) that there is no absolute bar
to contribution, (2) that contribution is available both when a
plaintiff has obtained a judgment against the tort-feasors and
when the plaintiff has not obtained a judgment and the liability
of joint tort-feasors has yet to be determined, (3) that there
must be a common liability between the party seeking contri-
bution and the party from whom contribution is sought, and (4)
that the party seeking contribution must have discharged more
than his or her share of the common liability.
The question is whether this court should impose additional
limitations on the right of contribution that are expressed in
the UCATA or similar legislation adopted by other states.
One limitation provides that the settling joint tort-feasor may
not recover contribution from the other nonsettling joint tort-
feasors unless the settlement extinguishes the liability of the
nonsettling joint tort-feasors to the injured party. See Schuman
v. Vitale, 144 Pa. Commw. 560, 602 A.2d 390 (1992).
We find the case of Ogle v. Craig Taylor Equipment Co., 761
P.2d 722 (Alaska 1988), helpful to our resolution of this ques-
tion. The Supreme Court of Alaska set forth six elements of a
claim for contribution: (1) The claimant must be a tort-feasor;
(2) the contribution defendant must be a tort-feasor; (3) the
tort-feasors must be jointly and severally liable in tort for the
same injury; (4) the claimant must have paid more than its pro
ESTATE OF POWELL v. MONTANGE 	853
Cite as 277 Neb. 846

rata share of the common liability; (5) the claimant must have
extinguished the contribution defendant’s liability for the injury
or wrongful death; and (6) if the liability was extinguished by
settlement, the amount must be reasonable. These elements
parallel the direction Nebraska has taken regarding contribu-
tion and contain the limitations described in the UCATA and
the UCFA.
Other courts have also held that the liability against the
third-party defendant must have been extinguished in order to
permit contribution from the joint tort-feasor. A settling tort-
feasor can pursue contribution against a nonsettling tort-feasor
only if the settlement extinguished the liability of the nonset-
tling tort-feasor. Nuessmeier Elec., Inc. v. Weiss Mfg. Co.,
632 N.W.2d 248 (Minn. App. 2001). “[T]he settling tortfeasor
must have removed the threat that the injured party might
later proceed directly against the non-settling tortfeasor.” Id.
at 253.
The Florida Supreme Court, in discussing provisions of the
UCATA that have been adopted in Florida, stated:
A tortfeasor who settles without extinguishing the entire
liability, and whose payment later turns out to be less than
his fair share, is not subject to actions for contribution to
others. . . . A tortfeasor who settles without extinguish-
ing the liability of another tortfeasor, and whose payment
later turns out to be more than his fair share, has no right
of contribution against the other. . . . In buying his peace,
such a settling tortfeasor merely misjudged the value of
the claim.
Woods v. Withrow, 413 So. 2d 1179, 1183 (Fla. 1982). Thus,
other courts have recognized the requirement that the settling
tort-feasor must have extinguished the liability of the nonset-
tling tort-feasor as a basis to seeking contribution from the
nonsettling tort-feasor.
The defendants urge this court to adopt the reasoning of
Clark’s Resources, Inc. v. Ireland, 142 S.W.3d 769 (Mo. App.
2004), which we decline to do. In that case, Daniel buckley
died from injuries he sustained during an altercation at a bar
owned by Clark’s resources, Inc. (Clark’s). Sean Ireland was
allegedly involved in the altercation. buckley’s parents and
854 	277 NEbrASkA rEPOrTS

Clark’s entered into a settlement agreement that did not include
Ireland. Clark’s then filed an action against Ireland seeking
contribution. The trial court entered judgment for Ireland,
concluding that Clark’s was barred from seeking contribution
because Ireland’s liability to buckley’s parents had not been
discharged in the settlement.
In reversing the judgment of the trial court, the appellate
court reasoned that it need not resolve whether the settlement
had extinguished Ireland’s liability, because his liability could
also be discharged by expiration of the statute of limitations
on buckley’s parents’ claims against him. The appellate court
concluded that “when the statute of limitations has expired
on the claims against a non-settling tortfeasor, his liability
has been extinguished for purposes of a settling tortfeasor’s
right to seek contribution from him.” Id. at 771. The appel-
late court reversed the judgment and remanded the cause for
further proceedings. Similarly, the defendants in the case at
bar claim they should be able to seek contribution from klein
because her liability has been extinguished by applicable stat-
utes of limitation.
We choose not to follow the court’s decision in Clark’s
Resources, Inc. Whether klein’s liability to the Estate has
extinguished by applicable statutes of limitation was not an
issue presented to the district court. Since the issue was not
presented to the lower court, we do not consider whether
applicable statutes of limitation extinguished klein’s liability.
See Clark v. Clark, 275 Neb. 276, 746 N.W.2d 132 (2008)
(appellate court will not consider issue on appeal that was
not passed upon by trial court). Even assuming that klein’s
liability was barred by applicable statutes of limitation and
her liability was extinguished, it was not because of the settle-
ment by the defendants. The defendants’ settlement was of
no benefit to klein. Thus, the defendants did not establish
they extinguished klein’s liability for the injury or wrongful
death. See Schuman v. Vitale, 144 Pa. Commw. 560, 602 A.2d
390 (1992).
[6] We now hold that in order to recover on a claim for
contribution among joint tort-feasors, the following elements
must be shown: (1) There must be a common liability among
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Cite as 277 Neb. 846

the party seeking contribution and the parties from whom
contribution is sought; (2) the party seeking contribution must
have paid more than its pro rata share of the common liability;
(3) the party seeking contribution must have extinguished the
liability of the parties from whom contribution is sought; and
(4) if such liability was extinguished by settlement, the amount
paid in settlement must be reasonable.
In the case at bar, the defendants and klein are alleged to
be tort-feasors jointly and severally liable for the wrongful
death. Whether the parties seeking contribution paid more
than their pro rata share is not known, but it is not necessary
to our analysis, because klein’s liability was not extinguished
by the settlement. The common liability among the joint
tort-feasors must be extinguished by the tort-feasor seek-
ing contribution.
[7] The basis for an action for contribution is the discharge
of a common liability caused by joint tort-feasors in which
one tort-feasor has paid more than his or her proportionate
share. See Cerny v. Todco Barricade Co., 273 Neb. 800, 733
N.W.2d 877 (2007). Under equitable principles, the discharge
of such liability is a benefit to the tort-feasor from whom
contribution is sought. However, without such discharge, the
other tort-feasor may remain liable to the injured party and the
tort-feasor seeking contribution will not have fixed the amount
of liability for which contribution is sought. A settlement by
one tort-feasor that does not extinguish the common liability
does not confer a benefit upon which a claim for contribution
may be asserted. “‘The doctrine of contribution is an equi-
table doctrine which requires that persons under a common
burden share that burden equitably.’” Zaffke v. Wallestad, 642
N.W.2d 757, 759 (Minn. App. 2002). If the common burden is
to be shared, the discharge of liability from such burden must
also be shared. Thus, a right of contribution among joint tort-
feasors is not established if the tort-feasor seeking contribution
extinguishes only his or her liability and does not extinguish
the liability of the other joint tort-feasors from whom contribu-
tion is sought.
The reciprocal also applies. A joint tort-feasor who settles
without extinguishing the entire liability, and whose payment
856 	277 NEbrASkA rEPOrTS

later turns out to be less than his fair share, is not subject to
actions for contribution to others. See Woods v. Withrow, 413
So. 2d 1179 (Fla. 1982).
Here, the defendants entered into a settlement with the Estate
prior to the entry of judgment against any of the tort-feasors.
The defendants took no action to extinguish klein’s liability
prior to entering into such settlement. The settlement did not
extinguish klein’s liability, because she was not a party to it.
The defendants have not met the requirement that the party
seeking contribution must have extinguished the liability of
the joint tort-feasor from whom contribution is sought. klein’s
liability was not extinguished, and she remained exposed to
a lawsuit.
Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no
genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
Jardine v. McVey, 276 Neb. 1023, 759 N.W.2d 690 (2009).
In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against
whom the judgment was granted, and the court gives that
party the benefit of all reasonable inferences deducible from
the evidence. Id.
CONCLUSION
The record presented in this case shows that there is
no genuine issue as to any material fact. The undisputed
facts show that Powell, a passenger in a vehicle driven by
Montange, died as a result of a motor vehicle accident. The
Estate sued the defendants for negligence. klein was not
made a party to that action. The defendants and the Estate
entered into a settlement that specifically stated klein was not
a released party.
Applying the elements required for contribution to the case
at bar, we determine that the defendants did not demonstrate
that they extinguished klein’s liability by the settlement. The
district court correctly determined that the defendants were
barred from seeking contribution from klein because they did
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Cite as 277 Neb. 846

not obtain a settlement or common release which extinguished
klein’s liability.
The judgment of the district court is affirmed.
affirmED.
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