The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER REJOINT& SEVER ALLIABILITY
The Court has before it a cross-motions for partial summary judgment on joint and several liability. The motions are fully briefed and at issue. For the reasons explained below, the Court will grant the defendants' motions and deny the plaintiffs' motion.
The plaintiffs seek a ruling that DuPont and the BLM are jointly and severally liable for their damages, a claim they raise in Count XVII of their complaint. DuPont and the BLM filed cross-motions seeking summary judgment that Count XVII be dismissed.
The plaintiffs' original complaint, filed in 2003, did not contain this concerted action claim; it was nearly four years later when they moved to amend their complaint to add the claim as the bellwether trial approached. The Court granted the motion to amend but held that it would unduly expand the upcoming bellwether trial, and therefore relegated the claim to the "bullpen" to be resolved later. See Memorandum Decision (Dkt. 409).
In challenging the motion to amend, the BLM argued that the amendment was futile because the governing Idaho statute required the parties acting in concert to intend to commit a tort, and there was no such evidence. The Court disagreed with that interpretation of the statute:
The term "acting in concert" is defined to include "pursuing a common plan or design which results in the commission of an intentional or reckless tortious act." See Idaho Code § 6-803(5). They must pursue a common plan. The common plan must result in a tort. But there is no requirement that they pursue a common plan to commit a tort -- that phrase is not in the statute, and the Court declines the invitation to insert it there. The allegations in the proposed amendment are therefore sufficient.
That decision was obviously preliminary in nature, resolving only the issue of whether the proposed amendment was futile. The issue is now before the Court with full briefing upon cross-motions for summary judgment, and arguments are made here that were not made when the motion to amend was being considered. Moreover, the legal standards governing summary judgment are starkly different from those governing a motion to amend. Finally, the Court now has the benefit of the bellwether trial to establish the facts of the parties' conduct. For all these reasons, the Court will examine the statute anew.
The statute at issue is Idaho Code §§ 6-803(3) & (5), and it reads as follows:
(3) The common law doctrine of joint and several liability is hereby limited to causes of action listed in subsection (5) of this section.
(5) A party shall be jointly and severally liable for the fault of another person or entity or for payment of the proportionate share of another party where they were acting in concert or when a person was acting as an agent or servant of another party. As used in this section, "acting in concert" means pursuing a common plan or design which results in the commission of an intentional or reckless tortious act.
A statute is ambiguous when it is susceptible to more than one meaning. State v. Yzaguirre, 163 P.3d 1183, 1188 (Id.Sup.Ct. 2007). When a statute is ambiguous, the Court examines the intent of the Legislature. State v. Yager, 85 P.3d 656, 665 (Id.Sup.Ct. 2004). "To ascertain the intent of the Legislature, not only must the literal words of the statute be examined, but also ...