Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

City of Spearfish, a South Dakota Municipal Corp. v. Duininck, Inc.

United States District Court, D. South Dakota, Western Division

June 6, 2017

CITY OF SPEARFISH, a South Dakota Municipal Corporation, and ELKHORN RIDGE MANAGEMENT, LLC, a South Dakota Limited Liability Company, Plaintiffs,
v.
DUININCK, INC., MN, f/k/a DUININCK BROS., INC., d/b/a DBI, A Minnesota Corporation, Defendant and Third-Party Plaintiff,
v.
AMERICAN TECHNICAL SERVICES, INC., Third-Party Defendant.

          ORDER TO REDUCE VERDICT

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         On January 19, 2017, the jury returned a verdict in favor of plaintiffs City of Spearfish and Elkhorn Ridge Management, LLC, on their breach of contract claim against defendant and third-party plaintiff, Duininck Inc., and in favor of Duininck on its negligence claim against American Technical Services (ATS). On January 23, 2017, Duininck moved to reduce the verdict. Docket 89. Plaintiffs oppose Duininck's motion. Docket 90. For the reasons stated below, the court grants Duininck's motion.

         FACTUAL BACKGROUND

         On June 18, 2007, Spearfish and Elkhorn formed an agreement with Duininck to construct the Elkhorn Ridge Golf Course in Spearfish, South Dakota. Under the agreement, Duininck was the general contractor and Wyss Associates was the landscape architect. ATS was hired to conduct geotechnical exploration and analysis of the construction area. A pond was constructed as part of the golf course. After construction of the golf course was completed, the synthetic liner under the pond leaked several times. As a result of the damages incurred from the leaking pond, Spearfish and Elkhorn sued Duininck alleging breach of contract. Duininick then filed a third-party complaint alleging that, if Duininck breached its contract to Spearfish and Elkhorn, it was the result of negligence on the part of Wyss and ATS. Before trial, Spearfish and Elkhorn entered into settlement agreements with ATS for $10, 000 and Wyss for $40, 000.

         Prior to trial, Wyss and ATS moved for summary judgment. Docket 36; Docket 37. This court granted summary judgment on behalf of Wyss and denied summary judgment on behalf of ATS. Docket 58 at 14. This court also concluded that, because ATS and Wyss entered into settlement agreements with Spearfish and Elkhorn, Duininck is entitled to a reduction in damages based either on the amount of the settlement with Wyss and ATS or the percentage of fault of Wyss and ATS, whichever is greater. Id. at 16-17. On January 19, 2017, the jury awarded Spearfish and Elkhorn $131, 931.54 in damages on their breach of contract claim against Duininck. Docket 86. On Duininck's third-party negligence claim against ATS, the jury found in favor of Duininck and determined that Duininck was 70 percent liable and ATS was 30 percent liable. Id. Duininck now moves to have the verdict reduced because it is entitled to contribution from Wyss and ATS. Docket 89. Plaintiffs resist Duininck's motion.

         DISCUSSION

          I. Whether plaintiffs waived the issue of contribution.

         The court must determine whether Spearfish and Elkhorn waived the issue of contribution by not raising it prior to submitting the verdict to the jury in a motion for judgment as a matter of law. Rule 50(a)(2) of the Federal Rules of Civil Procedure states that “[a] motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment.” Fed. R. Civ. Pro. 50(a)(2). The Eighth Circuit has previously held that an issue that is not raised in a pre-verdict motion under Rule 50 cannot be preserved or reviewed later. Graham Constr. Servs. Inc. v. Hammer & Steel, Inc., 755 F.3d 611, 618 (8th Cir. 2014).

         Duininck argues that plaintiffs waived the issue by not raising it in their motion for a judgment as a matter of law. Plaintiffs argue that the issue of contribution between Duininck, Wyss, and ATS was not previously raised to the court because there was no reason to raise the issue until now. Docket 96 at 2. This court previously stated in its Memorandum Opinion and Order dated August 3, 2016, (Docket 58) that comparative fault applies to this case and that Duininck “is entitled to a reduction in damages for which it is potentially liable because Wyss and ATS executed settlement agreements and releases.” See Docket 58 at 15. This court also instructed the jury on contribution and included a special interrogatory so the jury could assign a percentage of fault on the verdict form. See Final Jury Instructions Docket 84. Spearfish, Elkhorn, and ATS were all represented at trial and failed to raise the issue of contribution until now.

         Spearfish, Elkhorn, and ATS failed to ask the court to reconsider its ruling in its Memorandum Opinion and Order, and they failed to object to the jury instruction and the verdict form. Finally, and most importantly, they failed to raise the issue under Rule 50 at the close of evidence. Because Spearfish, Elkhorn, and ATS failed to object to the court's previous ruling, the jury instructions, the verdict form, and failed to raise the issue in its motion for judgment as a matter of law at the close of evidence, they waived the issue. But the court will briefly address plaintiffs' arguments.

         II. Whether Duininck is entitled to contribution from Wyss and ATS.

         In South Dakota, joint tortfeasors are defined as “two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.” SDCL § 15-8-11. The South Dakota Supreme Court has held that under SDCL § 15-8-17[1] “nonsettling defendants were entitled to credit for the greater amount of settlement of the settling defendant's percentage of liability as ultimately determined, regardless of whether or not the settling defendant was later determined to be a joint tort-feasor.” Bego v. Gordan, 407 N.W.2d 801, 812-13 (S.D. 1987)(citing Schick v. Rodenburg, 397 N.W.2d 464, 465 (S.D. 1986)). But “that rule assumes that the injured party has a possible remedy against the settling defendant as a joint tort-feasor.” Bego, 407 N.W.2d at 803.

         First, Spearfish and Elkhorn argue that Duininck is not entitled to contribution from Wyss and ATS because plaintiffs only asserted a claim for breach of contract against Duininck, and thus, Duininck is not liable in tort and is not a joint tortfeasor. Plaintiffs rely on Hagemann v. NJS Engineering Inc., 632 N.W.2d 840, 843-44 (S.D. 2001), as support. In Hagemann, the South Dakota Supreme Court held that the county could not seek indemnity or contribution from the injured party's coworker because the coworker was immune from suit under the worker's compensation statute and could not be considered a tortfeasor under the law. Id. Spearfish and Elkhorn do not contend that Wyss and ATS are immune from suit so the rationale of Hagemann is not applicable here.

         Second, the court will consider whether Spearfish and Elkhorn had a claim in tort against Duininck. Contribution is available where there is common liability to an injured person in tort. Muller v. Gateway Bldg. Sys., Inc., 743 F.Supp.2d 1096. To show negligence, “a plaintiff must prove duty, breach of that duty, proximate and factual causation, and actual injury.” Fisher Sand & Gravel Co. v. S.D. Dep't of Transp., 558 N.W.2d 864, 867 (S.D. 1997). Whether or not a duty exists is a question of law. Id. When determining whether a duty exists, the court asks whether “a relationship exists between the parties such that the law will impose upon the defendant a legal obligation of reasonable conduct for the benefit of the plaintiff.” Casillas v. Schubauer, 714 N.W.2d 84, 88 (S.D. 2006)(quoting Estate of Shuck, 577 N.W.2d 584, 586 (S.D. 1998)). Thus, a duty that arises out of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.