Frederick S. Fish,

1
STATE OF MINNESOTA

IN SUPREME COURT

A18-0143

Court of Appeals Lillehaug, J.

Frederick S. Fish,

Respondent,

vs. Filed: November 27, 2019
Office of Appellate Courts
Ramler Trucking, Inc.,

Appellant,

and

Wells Concrete Products Company
and Albany Manufacturing, Inc.,

Third-Party Defendants.

________________________

Scott Wilson, Scott Wilson Law Firm, PLLC, Minneapolis, Minnesota; and

Michel Steven Krug, Krug & Zupke, P.C., Saint Paul, Minnesota, for respondent.

Teri E. Bentson, Law Offices of Thomas P. Stilp, Golden Valley, Minnesota, for appellant.

Daniel J. Cragg, Eckland & Blando LLP, Minneapolis, Minnesota, for amicus curiae
Minnesota Association for Justice.

Lance D. Meyer, Dale O. Thornsjo, O’Meara, Leer, Wagner & Kohl, P.A., Minneapolis,
Minnesota, for amicus curiae Minnesota Defense Lawyers Association.

________________________

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S Y L L A B U S

Because an employer immune from tort liability under the Workers’ Compensation
Act is not a person “severally liable” under Minn. Stat. § 604.02, subd. 1 (2018), a
third-party tortfeasor’s liability to an injured employee for a workplace injury is not
reduced by the employer’s fault.
Affirmed.
O P I N I O N

LILLEHAUG, Justice.

In a line of decisions going back almost sixty years, we have held that an employer
liable to an injured employee under the Workers’ Compensation Act, and a third party
liable in tort to that same employee, do not have common liability, whether joint or several.
In this case, we consider whether the 2003 amendment to Minnesota Statutes section
604.02, subdivision 1 (2018), overturned that line of decisions and thereby made an
employer and a third-party tortfeasor “severally liable” for a workplace injury. If so, a
third-party tortfeasor’s liability to the injured employee would be reduced by the
employer’s fault. We conclude that, by the plain words of section 604.02, a tortfeasor’s
liability to an injured employee is not reduced by the employer’s fault. Accordingly, we
affirm the decision of the court of appeals.
FACTS

This case arises out of an employee’s workplace injury. Respondent Frederick Fish
was an employee of Albany Manufacturing, Inc. and Wells Concrete Product Company
(collectively, Fish’s employer). On December 17, 2012, Fish was working on a semi-trailer
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platform, helping to load an oversized concrete beam. In response to hand directions from
Fish’s coworkers, the truck driver began to move the truck and trailer forward. Fish jumped
off the moving trailer platform and was injured. The truck driver was an employee of
appellant Ramler Trucking, Inc.
Fish and his employer settled Fish’s workers’ compensation claim. Fish then
brought a common -law negligence claim against Ramler, which in turn brought a
third-party contribution claim against Fish’s employer. Ramler and the employer settled
the contribution claim and the employer’s possible subrogation claim.
Fish’s lawsuit against Ramler proceeded to trial. Having settled with both Fish and
Ramler, Fish’s employer did not participate in the trial. The special verdict form directed
the jury to allocate fault among all persons involved, including the non-party employer.
The jury found that the injury was caused by Fish, his employer, and Ramler, and allocated
fault as follows: 5 percent to Fish; 75 percent to the employer; and 20 percent to Ramler.
Post-trial, Ramler, citing Minn. Stat. § 604.02, subd. 1, argued that its liability to
Fish should be proportionate to its 20 percent fault. In other words, Ramler’s tort liability
would be reduced, not just by Fish’s 5 percent fault, but also by the employer’s 75 percent
fault.
Fish countered that, by its plain language, section 604.02 did not apply because
Ramler and Fish’s employer were not both “severally liable.” Employers, Fish argued, are
shielded from tort liability by the Workers’ Compensation Act. Absent two or more
severally liable parties, Fish contended, Ramler is liable to Fish for the full damage award,
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reduced only by Fish’s 5 percent contributory fault and any damages duplicative of
workers’ compensation benefits awarded to Fish.
The district court agreed with Ramler and applied section 604.02 to reduce the net
damage award by an amount proportionate to the employer’s fault. The court of appeals
reversed, concluding that it was error to apply section 604.02 in these circumstances, and
remanded to the district court for recalculation of the judgment. Fish v. Ramler Trucking,
Inc., 923 N.W.2d 337, 342–44 (Minn. App. 2019). We granted Ramler’s petition for
review.
ANALYSIS

Whether section 604.02, subdivision 1, applies to limit Ramler’s liability to Fish is
a question of statutory interpretation. Statutory interpretation presents a question of law,
which we review de novo. Bruton v. Smithfield Foods, Inc., 923 N.W.2d 661, 664 (Minn.
2019). “The object of all interpretation and construction of laws is to ascertain and
effectuate the intention of the legislature.” Minn. Stat. § 645.16 (2018). If the intent is
clear, we apply the statute according to its plain meaning. State v. Rick, 835 N.W.2d 478,
482 (Minn. 2013).
Minnesota Statutes section 604.02, subdivision 1, governs damage apportionment
in civil negligence actions. As amended in 2003, section 604.02 reads in relevant part:
Subdivision 1. Joint liability. When two or more persons are severally
liable, contributions to awards shall be in proportion to the percentage of fault
attributable to each, except that the following persons are jointly and
severally liable for the whole award:

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(1) a person whose fault is greater than 50 percent;
(2) two or more persons who act in a common scheme or plan that results in
injury;
(3) a person who commits an intentional tort; or
(4) a person whose liability arises under [a variety of environmental and
public health laws].

Minn. Stat. § 604.02, subd. 1.
Ramler argues that section 604.02, subdivision 1, limits a third party’s liability to
an amount proportionate to its fault when (a) a third party and an employer are both at fault
for a workplace injury, and (b) the third party’s fault is not greater than 50 percent. Fish
disagrees and argues that, because an employer and a third-party tortfeasor are not severally
liable persons, section 604.02, subdivison 1, is not triggered and Ramler’s liability is not
limited to the 20 percent fault assigned to Ramler by the jury.
The direction in section 604.02, subdivision 1 to apportion liability according to
fault is triggered only when “two or more persons are severally liable.” Several liability is
“liability that is separate and distinct from another’s liability ,” so that a severally liable
person is responsible only for his or her equitable share of damages. Staab v. Diocese of
St. Cloud, 813 N.W.2d 68, 74 (Minn. 2012) (quoting Several Liability, Black’s Law
Dictionary (9th ed. 2009)). To determine whether an employer and a third party are
severally liable for an injury and section 604.02 is triggered thereby, a short review of our
case law and relevant statutes at the intersection of the workers’ compensation and tort
systems is necessary.
At common law, when two or more negligent persons caused an injury, the persons
were “jointly and severally liable.” Maday v. Yellow Taxi Co. of Minneapolis, 311 N.W.2d
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849, 850 (Minn. 1981) (“It has always been the [common-law rule] of this state that parties
whose negligence concurs to cause injury are jointly and severally liable although not
acting in concert.”) . When two or more persons were jointly and severally liable, “a
plaintiff [could] bring an action to hold any or all of the jointly and severally liable
tortfeasors liable for the entire harm.” Staab, 813 N.W.2d at 74. It made no difference
whether the injury arose inside or outside the workplace. See, e.g., Pelowski v. J.R. Watkins
Med. Co., 139 N.W. 289, 292 (Minn. 1912) (“[I]f the negligence of both [the employer]
and the stonesetters concurred as the proximate cause of [the employee’s] death, a recovery
could be had.”); Coleman v. Minneapolis St. Ry. Co., 129 N.W. 762, 763 (Minn. 1911)
(holding that where an employee was injured by the concurrent negligence of his employer
and a third party, he was entitled to recover damages against both defendants).
That changed with the passage of the Workers’ Compensation Act in 1913. The
Act established a statutory alternative to common-law tort liability for workplace injuries,
elective at the option of employers and their employees. In 1937, the Act was amended to
make statutory liability mandatory and exclusive, thereby immunizing employers from
common-law tort liability. Minnesota Statutes section 176.04 (1941)—now codified at
Minnesota Statutes section 176.031 (2018)— provided that an employer’s liability under
the Act was “exclusive and in the place of any other liability.” This exclusivity provision
meant that an employee injured in the workplace could not bring a common-law negligence
action against an employer, and the employee’s recovery against the employer was limited
to workers’ compensation benefits regardless of fault. The exclusivity did not, however,
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alter an employee’s ability to bring a common -law negligence action against a third-party
tortfeasor.
The establishment of two separate remedies for workplace injury —workers’
compensation and tort—raised the question of the relationship between these systems. The
Workers’ Compensation Act provided that an employer could recover in subrogation from
the tortfeasor. See Minn. Gen. Stat. § 8229 (1913). But the Act was silent on whether a
tortfeasor could recover in contribution from an employer.
In answering that question through several cases, we identified the precise nature of
the legal relationship between an employer and a third-party tortfeasor. Our leading case
was Hendrickson v. Minnesota Power & Light Co., 104 N.W.2d 843 (Minn. 1960),
overruled in part on other grounds by Tolbert v. Gerber Indus., Inc., 255 N.W.2d 362
(Minn. 1977). In Hendrickson, a third-party tortfeasor sued by an employee for a
workplace injury sought contribution from an at-fault employer. We held that contribution
was not available. 104 N.W.2d at 849.
In denying contribution to the third party , we discussed the black-letter common
law of tort liability. We noted that contribution requires “common liability,” which exists
when two or more tortfeasors jointly or concurrently cause the injury. Id. at 847, 849. 1

1 Put another way, common liability “exists when two or more actors are liable to an
injured party for the same damages.” Farmers Ins. Exch. v. Vill. of Hewitt, 143 N.W.2d
230, 233 (Minn. 1966); see also Waldref v. Dow, 214 N.W. 767, 768 (Minn. 1927)
(explaining that contribution is based on “common liability,” which includes two persons
“jointly, or jointly and severally, bound to pay a sum of money”); Gugisberg v. Eckert, 111
N.W. 945, 946 (Minn. 1907). Indeed, common liability “is the very essence of an action
for ‘contribution’.” Koenigs v. Travis, 75 N.W.2d 478, 483 (Minn. 1956).
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But, because of the Workers’ Compensation Act’s exclusivity provision, we said, when the
concurrent acts or omissions of a third party and an employer cause injury, there is no
common liability. Because of the Act, the employer is “immune from action with respect
to such tort.” Id. at 847. Thus, “there is no common liability involving the employer and
third party in such situations; and, therefore, there [are] no grounds for allowing
contribution.” Id. at 849. The result of Hendrickson was that third-party tortfeasors were
liable for the full damage award, and had no right of contribution from the immune
employer, regardless of the employer’s fault.
In Lambertson v. Cincinnati Welding Corp., we reaffirmed Hendrickson’s holding
that there was no common liability between an employer and a third-party tortfeasor. 257
N.W.2d 679, 688 (Minn. 1977) (“[T]here is no common liability to the employee in
tort . . . .”). Recognizing the injustice for third-party tortfeasors, however, we established
a common -law equitable right of contribution. Id. Lambertson allowed a third-party
tortfeasor to receive contribution from an employer up to the employer’s percentage of
fault, but the contribution amount could not exceed the workers’ compensation benefits
payable. Id. at 689.
Since our decisions in Hendrickson and Lambertson, we have strictly adhered to the
conceptual framework that an employer and a third-party tortfeasor do not share common
liability, but that the tortfeasor has a limited common-law right to contribution. 2 Thus, in

2 Although Lambertson indicated that common liability may be an “outworn technical
concept[]” when it comes to fashioning a “flexible, equitable remed y” like contribution,
257 N.W.2d at 688, we did not do away with the doctrine of common liability. See, e.g. ,
Horton by Horton v. Orbeth, Inc., 342 N.W.2d 112, 114–15 (Minn. 1984) (noting that
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Johnson v. Raske Building Systems, Inc., we explained the “correct procedure for
apportionment” for the equitable contribution right recognized in Lambertson. 276
N.W.2d 79, 81 (Minn. 1979). First, the third-party tortfeasor pays the entire verdict, which
is the full damage award reduced by the plaintiff’s percentage of fault under Minn. Stat.
§ 604.01 (2018);3 second, the employer contributes to the third-party tortfeasor an amount
that represents the lesser of its percentage of negligence or the workers’ compensation
benefits payable; and, third, the employee reimburses the employer for workers’
compensation benefits paid, under Minn. Stat. § 176.061, subd. 6(c) (2018) (the
subrogation right). 276 N. W.2d at 81. As we explained: “Where the employer who has
paid workers’ compensation benefits and a third party are both negligent, the
apportionment of damages is controlled by Minn. [Stat §] 176.061, subd. 6, and our
decision in Lambertson . . . .” Id. at 80; see also Hudson v. Snyder Body, Inc., 326 N.W.2d
149, 157 (Minn. 1982) (stating that a special verdict allocating fault to an employer has no
application outside of contribution because an employee cannot recover from an employer
regardless of fault).

“Lambertson . . . and its progeny do not stand as authority for the proposition that common
liability is no longer relevant”).

3 The comparative fault provision states that a plaintiff can recover if the plaintiff’s
fault “was not greater than the fault of the person against whom recovery is sought, but any
damages allowed must be diminished in proportion to the amount of fault attributable to
the [plaintiff].” Minn. Stat. § 604.01, subd. 1. Here, the district court applied Minn. Stat.
§ 604.01 in submitting the verdict form to the jury, and that decision is not at issue in this
appeal. The jury found Fish to be 5 percent at fault, and the district court correctly reduced
his damage award accordingly.
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Perhaps the case in which we have spoken most plainly about the separation of the
workers’ compensation system and the tort system is Kempa v. E.W. Coons Co., 370
N.W.2d 414 (Minn. 1985). We made clear that statutory damage apportionment, as found
in then-current section 604.02, did not govern contribution or subrogation in workplace
injury cases. Id. at 420. We also made clear that a third-party tortfeasor and an e mployer
“are neither jointly liable nor jointly and severally liable” to the employee. Id.
In 2000, the Legislature codified Lambertson and its progeny as Minn. Stat.
§ 176.061, with only slight modifications. Subdivision 11 of that statute provides that a
liable third-party tortfeasor has a right of contribution against the employer in an amount
proportional to the employer’s percentage of fault with certain limitations. Subdivision 11
presumes that a third party must pay more than its share of fault, but provides that this
disproportion may be offset, to some extent, by contribution from the employer.
With our precedent and the statute codifying our precedent in mind, we turn now to
Ramler’s contention—that the 2003 amendment to section 604.02, subdivision 1, limits an
injured employee’s award against the tortfeasor to the tortfeasor’s percentage of fault when
the employer is also at fault and the tortfeasor’s fault is not greater than 50 percent. The
2003 amendment made “several liability,” rather than “ joint liability,” the default in tort
cases. Ramler argues that nonparties—such as employers —are severally liable persons
because, as we said in Staab, several liability is determined at the time a tort occurs. 813
N.W.2d at 75. Ramler’s theory is that both Ramler and the employer were liable at the
moment the tort occurred in this case—in other words, when Fish was injured.
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We are not persuaded. The plain words of section 604.02, subdivision 1, require
that, for the statute to be triggered, persons must be “severally liable.” As we made clear
in Hendrickson, Lambertson, and Kempa, employers liable in workers’ compensation and
third parties liable in tort are not commonly liable, either jointly or severally, because the
employer is shielded from tort liability. See Kempa, 370 N.W.2d at 420. 4 Staab did not
overrule this long-standing precedent and said nothing about employer liability. After all,
Staab involved an accident at a place of worship, not a place of work. 5
Further, the text of the rest of section 604.02 tells us that the phrase “severally
liable” does not include employers. See Cent. Hous. Assocs., LP v. Olson, 929 N.W.2d
398, 402 (Minn. 2019) (stating that we will read a statute in context to “determine whether
a statute’s meaning is plain”). If Ramler were correct, a severally liable employer would
become a person “jointly and severally liable for the whole award” in tort if its fault were
greater than 50 percent. See Minn. Stat. § 604.02, subd. 1. And, if the third-party
tortfeasor’s share turned out to be uncollectible, by reallocation the employer could be yet
further liable. See id., subd. 2 (2018). Ramler’s interpretation would take a sledgehammer
to the Workers’ Compensation Act’s tort immunity f or employers, a cornerstone in the

4 As Staab recognized, “several liability is a component of joint and several liability.
It is not logically possible for a tortfeasor to be jointly and severally liable without being
severally liable.” 813 N.W.2d at 74 n.3. Thus, the change in section 604.02, subdivision
1, from joint and several liability to several liability did not work a substantial change to
common-law common liability.

5 A single case from the District of Minnesota has opined that Staab changed
Minnesota law to require the use of section 604.02 in workplace injury cases. See
Gaudreault v. Elite Line Servs., LLC , 22 F. Supp. 3 d 966, 981 (D. Minn. 2014). With
respect, we do not find the federal court’s reasoning persuasive.
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Act’s foundation. That cannot be what the Legislature intended when it amended section
604.02.
Accordingly, in this case, Ramler’s liability to Fish is not reduced by the fault of
Fish’s employer.
CONCLUSION

For the foregoing reasons, we affirm the decision of the court of appeals.

Affirmed.