Hermann Horst, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1604

Hermann Horst,
Appellant,

vs.

Bill’s Diesel Repair, Inc.,
Respondent,

Thompson Gas LLC,
Third-Party Defendant.

Filed September 27, 2021
Affirmed
Reyes, Judge

St. Louis County District Court
File No. 69DU-CV-18-3192

Sharon L. Van Dyck, Van Dyck Law Firm, PLLC, Minneapolis, Minnesota , James W.
Balmer, Falsani, Balmer, Peterson & Balmer, Duluth, Minnesota (for appellant)

Matthew R. Thibodeau, David M. Johnson, Paige V. Orcutt, Trial Group North, Duluth,
Minnesota (for respondent Bill’s Diesel Repair)

Considered and decided by Connolly, Presiding Judge; Reyes, Judge; and Florey,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
In this workplace-injury action against a third-party tortfeasor, appellant-employee
argues that the district court erred as a matter of law by applying Minn. Stat. § 604.01,
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subd. 1 (2020), to bar recovery because appellant’s contributory fault was greater than the
third-party tortfeasor’s fault. We affirm.
FACTS
In 2016, appellant -employee Hermann Horst sustained a workplace injury while
employed by Thompson Gas, LLC. Respondent Bill’s Diesel was the third-party tortfeasor
in the workplace injury. After the injury, Horst collected worker’s compensation benefits
from Thompson Gas.
In 2018, Horst sued Bill’s Diesel. Bill’s Diesel, in turn, raised a contribution claim
against Thompson Gas.
Weeks before the trial, the Minne sota Supreme Court decided Fish v. Ramler
Trucking, Inc., 935 N.W.2d 738 (Minn. 2019). The parties and the district court knew of
that decision.
Following a jury trial, the jury found Horst 45% at fault, Bill’s Diesel 5% at fault,
and Thompson Gas 50% at fault. The jury found $447,055.19 in damages. Both Horst and
Bill’s Diesel moved for entry of judgment in their favor. The district court denied Horst’s
motion and granted Bill’s Diesel’s motion, determining that Horst is barred from
recovering under Mi nn. Stat. § 604.01, the comparative -fault statute, because his fault is
greater than Bill’s Diesel. Horst appeals.1

1 Thompson Gas takes no part in this appeal.
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DECISION
Horst argues that the district court erred by applying the comparative-fault statute
in this workplace -injury claim to bar recovery because he had fault greater than Bill’s
Diesel. We are not persuaded.
A statute’s application to undisputed facts presents a question of law, which we
review de novo. See Harlow v. State, Dep’t of Human Servs., 883 N.W.2d 561, 568 (Minn.
2016) (noting that relevant facts are undisputed).
The relevant portion of the comparative-fault statute states:
Contributory fault does not bar recovery in an action by any
person or the person’s legal representative to recover damages
for fault resulting in death, in injury to person or property, or
in economic loss, if the contributory fault was not greater than
the fault of the person against whom recovery is sought , but
any damages allowed must be diminish ed in proportion to the
amount of fault attributable to the person recovering.

Minn. Stat. § 604.01, subd. 1 (emphasis added). Horst argues principally that the
Minnesota Supreme Court’s recent decision in Fish v. Ramler Trucking, Inc. marks a shift
in c aselaw and renders the comparative -fault statute inapplicable in work place-injury
actions against a third-party tortfeasor. 935 N.W.2d 738.
The Minnesota Supreme Court recognized an equitable right of contribution
between a third-party tortfeasor and an employer in Lambertson v. Cincinnati Corp. , 257
N.W.2d 679, 68 9 (1977). It then clarified the mechanics of contribution and
reimbursement among an employee, third -party tortfeasor, and employer in Johnson v.
Raske Bldg. Sys., Inc. , 276 N.W.2d 79 , 81 (Minn. 1979) (holding that employers have a
right to reimbursement for benefits paid). Under the “correct procedure,” (1) the third-
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party tortfeasor pays the entire verdict to the employee ; (2) the employer then contributes
“to the third-party tortfeasor an amount proportionate to its percentage of negligence, but
not to exceed the amount of workers’ compensation benefits payable ;” and (3) the
employee then reimburses the employer. Id.
But before the apportionment process in Johnson begins, the district court must
apply the comparative-fault statute to determine whether the employee-plaintiff’s fault is
greater than the third-party tortfeasor from whom the employee -plaintiff seeks recovery .
See Cambern v. Sioux Tools, Inc. , 323 N.W.2d 795, 799 (Minn. 1982) (not reaching
apportionment because plaintiff’s fault greater than third-party tortfeasor’s). In Cambern,
the employee was 35% at fault, the third-party tortfeasor 20%, and the employer 45%. Id.
at 798. The Minnesota Supreme Court rejected the arg ument that the third -party
tortfeasor’s fault and the employer’s fault could be aggregated for purposes of the
comparative-fault statute. Id. The supreme court reasoned that there is no joint liability
because there are no “joint and overlapping” duties: an employer has a duty to provide a
safe workplace while a third -party’s duty depends on the situation. Id. at 798 -99
(recognizing that third -party tortfe asor was manufacturer who had duty to provide
reasonably safe product); see also Hendrickson v. Minn. Power & Light Co., 104 N.W.2d
843, 847-48 (Minn. 1960) (holding that, because no common liability exist s between an
employer, who is immune from tort liability, and a third-party tortfeasor, no statutory right
of contribution exists ), overruled in part on other grounds by Tolbert v. Gerber Indus.,
Inc., 255 N.W.2d 362 (Minn. 1977) . The supreme court concluded that the reason the
plaintiff-employee could not recover is because the jury found her negligence greater than
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the defendant-third-party tortfeasor, not because her employer is immune from her suit. Id.
at 799 . The supreme court clarified that “[t]he compromise effect of the workers’
compensation sys tem is well documented, and it would not be appropriate to try to
counteract the system’s consequences by creating an exception to section 604.01.” Id.
(emphasis added).
The Minnesota Supreme Court recent ly held in Fish that a 2003 amendment to
Minn. Stat. § 604.02, subd. 1 (2020), did not overturn prior decisions that an employer and
a third -party tortfeasor cannot be “severally liable” for a workplace injury. Fish, 935
N.W.2d at 740; Hendrickson, 104 N.W.2d at 849 (reasoning that no common liability exists
between an employer and a third -party tortfeasor ). Fish reiterates that section 604.01
applies to reduce the damage award by the plaintiff-employee’s percentage of fault. 935
N.W.2d at 743. In a footnote, the Minnesota Supreme Court stated:
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.
Id. (emphasis added). Thus, in Fish, the supreme court noted that the district court applied
the comparative-fault statute but acknowledged that its decision to do so was not at issue.
In this case, the district court acknowledged Cambern as controlling precedent that
Fish, which governs section 604.02 rather than section 604.01 , left undisturbed . The
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district court articulated the difference between finding fault and apportioning damages
based on the percentage of fault to each party: “until there is sufficient fault found by a
jury, there is no liability to trigger the contribution and [the apportionment process].” As
in Cambern, if the plaintiff -employee’s fault is greater than the defendant -third-party
tortfeasor’s, then the first step of the “correct procedure” articulated in Johnson is not
triggered. We agree with the district court’s summary of the relevant caselaw and
application of section 604.01 to these facts.
Horst argues that the comparative-fault statute “does not apply to workplace injury
cases.” But that assertion is contrary to Cambern and Fish. In Cambern, a workplace -
injury case, the Minnesota Supreme Court expressly applied “the plain wording and history
of section 604.01” when it barred a plaintiff -employee, who was at greater fault than the
defendant-third-party tortfeasor, from recovery . 323 N.W.2d at 800. Similarly, in Fish,
also a workplace-injury case, the supreme court indirectly applied section 604.01 when it
stated that “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 [the comparative-
fault statute].” 935 N.W.2d at 743 (emphasis added).
Horst attempts to distinguish Cambern by stating that only the “principles from the
comparative fault act” apply to workplace-injury cases against a third -party tortfeasor. It
is true that in some limited circumstances, the Minnesota Supreme Court has stated that
the comparative-fault statute does not apply, as it did in a contribution claim between a
third-party tortfeasor and an employer. Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 151
(Minn. 1982) (“ A t hird-party tortfeasor may recover contribution from a negligent
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employer whether or not the employee, in a direct suit, would have been barred from
recovery under the comparative-fault statute.”). But Cambern has definitively answered
that the relevant clause, “the contributory fault was not greater than the fault of the person
against whom recovery is sought,” applies when a plaintiff-employee seeks recovery from
a defendant-third-party tortfeasor , as is the case here. 323 N.W.2d at 800. Horst thus
misstates that “the Cambern court did not address whether the application of the
Comparative Fault Act to a workplace-injury case was appropriate.”
Horst also argues that Cambern is distinguishable from his case because he does not
seek an exception to the comparative -fault statute. This appears to be an argument of
semantics. Horst essentially argues that subdivision 1 of the comparative-fault statute does
not apply to a plaintiff-employee seeking recovery from a defendant-third-party tortfeasor.
The Minnesota Supreme Court addressed this by stating that (1) section 604.01 applies and
(2) there is no exception to allow aggregation between an employer and third -party
tortfeasor for section 604.01 purposes. Cambern, 323 N.W.2d at 800. Under Cambern,
section 604.01 applies to bar recovery from a plaintiff-employee whose fault is greater than
the defendant-third-party tortfeasor.
Horst appears to borrow language from section 604.02 to create a new standard that
would allow an employee to recover from a third -party tortfeasor if the employee is less
than 51% at fault.2 But Fish clearly states that section 604.02 does not apply because there

2 At times Horst refers to a rule of “less than 51%” and other times he refers to a rule based
on “less than 50%.” To be clear, section 604.02, subdivision 1, applies when “two or more
persons are severally liable,” a person whose fault is “greater than 50 percent” is liable for
the entire amount.
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is no “several liability” between an employer and a third-party tortfeasor. As such, it is not
section 604.02 that bars Horst from recovery, but rather section 604.01. It is irrelevant that
Horst is less than 50% at fault for apportionment purposes because Horst has not shown
sufficient liability to trigger the first step of apportionment in workplace -injury cases as
articulated in Johnson.
Horst suggests that, because Fish does not cite to Cambern, the Minnesota Supreme
Court impliedly limited Cambern to “its holding and its facts.” But Fish merely clarifies
that the 2003 amendment to section 604.02 does not overtu rn its prior decisions. 935
N.W.2d at 743. Horst’s argument, that the Minnesota Supreme Court intended to modify
a case to which it does not cite when it expressly held that an amendment to a different
statute does not overturn its prior decisions, is meritless.
Next, Horst argues that Hudson is directly applicable to this case. In Hudson, the
Minnesota Supreme Court held that a “third-party tortfeasor may recover contribution from
a negligent employer whether or not the employee, in a direct suit, would have been barred
from recovery under the comparative-fault statute. 326 N.W.2d at 158. The supreme court
reasoned that the comparative -fault statute applies to plaintiff -defendant relationships
under the plain language of the statute: “of the person against whom recovery is sought.”
Id. at 157 (quoting Minn. Stat. § 604.01, subd. 1) . Because a third -party does not seek
recovery from an employer, but rather contribution, the comparative-fault statute does not
apply. Id. As such, Hudson governs a contribution claim between a third-party tortfeasor
and an employer, not a plaintiff -employee seeking recovery from defendant -third-party
tortfeasor. Because section 604.01 applies to a person seeking “recovery,” the plain
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language of the statute accounts for the different applications between a defendant seeking
a contribution and a plaintiff seeking recovery . Moreover, Hudson undercuts Horst’s
argument because the district court in Hudson entered judgment against the two defendant-
third-party tortfeasors whose fault was greater than the plaintiff, but not against the
defendant-third-party tortfeasor whose fault was less than the plaintiff.
Lastly, we note that Horst cites no case , and we are aware of none, in which a
plaintiff-employee recovered from a defendant-third-party tortfeasor who was less at fault.
Horst also does not rely on any amendment to section 604.01 to suggest that Cambern no
longer applies.
In sum, we conclude that Cambern is directly on point and that Fish does not modify
the supreme court’s prior decisions, including Cambern. Under Cambern and the plain
language of section 604.01, the district court correctly concluded that Horst cannot recover
because the jury found his fault greater than Bill’s Diesel, from whom he sought recovery.
Affirmed.