POHNPEI SUPREME COURT TRIAL DIVISION
Cite as Koike v. Ponape Rock Products, INC.,
3 FSM Intrm. 182 (Pon. S. Ct. Tr. 1987)
 
[3 FSM Intrm. 182]

FELIX KOIKE and SUSA KOIKE,
Plaintiffs,

v.

PONAPE ROCK PRODUCTS, INC.
Defendants.

PCA NO. 7-1983

WALERIANO SHAM and SABINA SHAM,
Plaintiffs,

v.

PONAPE ROCK PRODUCTS, INC.,
Defendants.

PCA NO. 51-1983

OPINION
 
Before Edwel H. Santos
Chief Justice
Pohnpei Supreme Court
March 25, 1987

APPEARANCES:
          For the Plaintiffs:               Robert Keogh
                                                      P.O. Box GZ
                                                      Agana, Guam 96910

          For the Defendants:          Paul Lawlor
             (PATS)                            Suite 400 GCIC Building
                                                      141 West Soledad Avenue
                                                      Agana, Guam 96910

          For the Defendants:          Martin F. Mix
          (Adams and Ponape        P.O. Box 143
          Rock Products, Inc.)         Kolonia, Pohnpei 96941                                   

[3 FSM Intrm. 183]
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HEADNOTES
Torts - Negligence - Damages
     In apportioning damages among negligent parties, the Pohnpei Supreme Court will consider the following factors:  the Pohnpei Constitution, custom and tradition, the degree of negligence of each party, other jurisdictions' efforts to abolish joint liability, the need to minimize the role of insurance companies given Pohnpei's stage of development, the example of the U.S. insurance crisis, other jurisdictions' efforts to modify the rules governing joint and several liability, and American judges' assessments of joint and several liability.  Koike v. Ponape Rock Products, Inc. (II), 3 FSM Intrm. 182, 185 (Pon. S. Ct. Tr. 1987).

Torts - Damages
     In keeping with the spirit of Pohnpeian custom, when defendants are at fault, they should share in the payment of damages based upon their share of liability. Koike v. Ponape Rock Products, Inc. (II), 3 FSM Intrm. 182, 185 (Pon. S. Ct. Tr. 1987).
 
*        *        *        *

COURT'S OPINION
EDWEL SANTOS, Chief Justice:
     Judgment in this action was rendered by the Pohnpei Supreme Court on November 5, 1986 [entered on the record on November 17, 19861, in favor of plaintiffs in a combined sum of $142,060.00, of which $84,500.00 was payable to Koike plaintiffs in Civil Action 7-83 and $57,560.00 was payable to Sham plaintiffs in Civil Action 51-83.  See 3 FSM Intrm. 57.  The judgment apportioned the damages of $84,500.00 in Civil Action 7-83 equally between defendants Jack Adams and Ponape Rock Products Inc. and the Ponape Agriculture and Trade School, Inc. so that defendants Jack Adams and Ponape Rock Products, Inc. and Ponape Agriculture and Trade School shall each pay $42,250.00 in damages to the Koike plaintiffs.

     The Koike plaintiffs moved pursuant to Rule 52(e) Pohnpei Rules of Civil Procedure that the Pohnpei State Supreme Court alter or amend its judgment to provide for joint and several liability for defendants Jack Adams and Ponape Rock Products, Inc. and PATS for the Koike plaintiffs' portion of the judgment. Defendant PATS objected to Plaintiff Koike's motion.

     Oral argument by counsel was heard on February 18, 1987. counsel for defendants Jack Adams and Ponape Rock Products, Inc. expressed no positions on the motion.  The Koike plaintiffs' motion is based on the following:

     1.     In concluding that the barge construction/completion project undertaken by the parties was a joint enterprise, the Pohnpei Supreme Court cited W. Prosser, The Law of Torts 457 (4th ed. 1971) which provides that when a joint enterprise exists, "[t]he law then considers that each is the agent or servant of the others, and that the act of any one within the scope of the
 
[3 FSM Intrm. 184]
*        *        *        *

enterprise is to be charged vicariously against the rest...."

     (2)     In assessing damages, specifically, with respect to the Koike plaintiffs, the Pohnpei Supreme Court designated the respective share that each defendant was responsible for, relying upon the Pohnpeian saying "kaidehn peid sipal ieu dihp."

     (3)     Under U.S. common law principles, the conclusion that an activity constituted a joint enterprise also entails a determination that each of the joint venturers is joint and severally liable for the acts of each other, citing 46 Am. Jur. 2d Joint Ventures, 58 (1969), to wit:

On the ground that a joint venture is not a distinct legal entity it has been held that an employee of a joint venture is an employee of each of the joint venturers, so that each joint venturer and his insurance carrier would be jointly and severally liable for an award to an injured employee of the joint venture...; and

     (4) The practical effect of the court's determination of several rather than joint and several liability is that the Koike plaintiffs must seek to collect the damages awarded by the court from two separate entities rather than from whichever one is best able to pay.

     The Koike plaintiffs then submit that the common law joint and several liability concept in the joint enterprise situation does not offend the Pohnpeian customary law principle applied by the Court, but rather is perfectly consistent with it.

     Consequently the Koike plaintiffs cited the Trust Territory Contribution and Tort-Feasors Act, 6 TTC 551-556, as the controlling statutory law in this case where the burden of apportioning the damages is upon the joint tortfeasors and not upon the plaintiff.

     Defendant Ponape Agriculture and Trade School denied Koike plaintiffs' motion pinpointed at the court's enunciation of customary law providing that damages must be apportioned among wrongdoers and that each wrongdoer must be responsible for the result of his own wrongdoing.  Additionally this Court's judgment clearly indicated that under both Pohnpei State and the FSM Constitutions, the Court is bound to apply customary law over the common law, especially where customary law relating to a given subject matter exists, is practiced in our society, is known by the Court, and where there is no statutory law overriding or superseding such customary law.  Defendant PATS also objected to the plaintiffs' urging that the Trust Territory Contribution and Tortfeasor's Act is controlling in this case.

     In apportioning the damages among the defendants in this case certain factors were considered by the Court.

     First, the Constitutional policy mandates that decisions of all courts

[3 FSM Intrm. 185]

in Pohnpei shall be consistent with the Constitution of Pohnpei and the concepts of justice of the people of Pohnpei.  Pon. Const. art. 10, 11.

     Second, the Constitution of Pohnpei upholds, respects, and protects the customs and traditions of the traditional kingdoms in Pohnpei.  Pon. Const. art. 5, 1 and 2.

     Third, in analyzing the evidence presented in the case it became unequivocally clear in the Court's mind that the defendants Jack Adams and Ponape Rock Products, Inc. and Ponape Agriculture and Trade School were equally negligent in the prosecution of their joint venture project, and in applying our customary practice, each is accountable for his own misdeed or negligent act.  [Kaidehn mehn peidsipal ieu dihp].  The exception known to this Court is when the negligent party or person committing the misdeed is a minor, in which situation the parents of the minor are responsible.

     Fourth, the Court is mindful of such efforts in other jurisdictions like New York, as reported in the New York State Law Digest, No. 322, October 1986, reporting New York's law partially abolishing the joint liability rule in tort cases.  The report said in pertinent part:

The rule of "joint and several" liability has long been the rule in tort cases, meaning that each tortfeasor is responsible not only for the share of plaintiff's damages that he caused ("several" liability), but also for the shares attributable to the other culpable tortfeasors ("joint" liability).  The practical impact of this rule is that as long as any one of the tortfeasors is solvent, able to pay the whole judgment though in point of fault accountable for just a small part of it, the plaintiff can collect all from the solvent tortfeasor.  The tortfeasor who paid can then turn around and seek recompense from the other tortfeasors based on their shares.  That is what "contribution" is all about.  But if the others can't pay, the one who paid ends up with the whole bill.

The rule of "joint and several" liability thus assures that if there is to be a loser in the pack, it won't be the plaintiff, the injured person; it will be the solvent tortfeasor.... The percentage apportionments among tortfeasors that we have been accustomed to seeing in tort cases in more recent years is merely an adjustment of their rights among themselves after the [injured plaintiff] has been paid by any able-to-pay source among them.

The digest went on commenting that:

The injustice that this brought about (and in many situations will still bring about) was that a tortfeasor guilty of only the smallest share of wrongdoing would often

[3 FSM Intrm. 186]

end up having to pay all or most of plaintiff's judgment against the other tortfeasors, often insolvent.  No gift  the law bestows is more frustrating than a fat judgment against a deadbeat.

     Fifth, it is well understood that the growth and development of tort law and of tort practice have been tracked by the insurance industry to the extent that, in the United States of America, the scope of tort law may well depend upon whether a claim is insurable, and the practice of tort law is generally the act of settling with the insurance company.  S. King, Alternative Remedies for Civil Wrongs - A Pacific Perspective, First South Pacific Law Conference, Apia, Western Samoa, August 1986.  Pohnpei is part of a newly emerging  nation.  Insurance companies are not yet effectively established in our jurisdiction.  Perhaps we need not in this early stage of our development provide the incentive for the insurance crises to emerge because the impact of it on our social structure could be detrimental; it could demean our personal relationships with our fellow citizens.

     Sixth, in President Reagan's appointed working group chaired by Assistant U.S. Attorney General Richard K. Willard to study and to report on the "insurance crisis," as it relates to tort law and practice, the group in its 80-page report proposed eight reforms in tort law as follows:

     (1)  Return to the legal concept of "fault-based liability" by rebuffing the increasing application of a "strict liability" standard.

     (2)  Restrict the use of joint and several liability to those situations where the defendants have actually acted in concert.

     (3)  Put a cap on noneconomic damages, limiting such awards to "a fair and reasonable maximum dollar amount."

     (4)  Limit attorneys fees to 25% of the first $100,000, 20% of the second $100,000, 15% of the third $100,000, and 10% of any remainder.

     (5)  Reject expert testimony based on "junk science."

     (6)  Take into account compensation gained from collateral sources.

     (7)  Spread the period of payment of damages over the period of the damage.

     (8)  Encourage alternative dispute resolution.

     The group's conclusions have been summarized by Mr. Willard in his statement that:  "The underlying causes of the crises are changes in jurisprudence--a move toward no-fault liability, an undermining of traditional principles of causation, the misuse of scientific evidence, and the awarding of damages that bear little proportion to injuries actually suffered."  See 6 Jud. Legis. Rep., March 16, 1986.

[3 FSM Intrm. 187]

     Seventh, in Hawaii, the legislature has also modified the rules governing joint and several liability.  See Hawaii's Act No. 2, First Sp. Session, 1986, signed into law on August 4, 1986.

     Eight, quoting Judge Samuel P. King from his lecture, he said:

Thus we see that tort law as it is inherited, for example, in the Federated States of Micronesia from the United  States of America through the Trust Territory of the  Pacific Islands is nothing more or less than judge made  law.  Law which is not even uniform throughout the United States.  Law which judges have felt free to modify  according to the circumstances of the particular case and  of the society and age in which they lived.

     Ninth, in his assessment of the rule on "joint and several" liability.  Judge Samuel P. King said:

A rule that limits the amount of recovery against a defendant to that defendant's percentage of a liability is rational, appropriate, and well within the historical rule-making power of a common law court.  An exception -- and there must, as a matter of course, be at least one exception -- would hold each of several unrelated  defendants liable for all damages suffered by a plaintiff  if the defendants had acted in concert.  Id.

     The judgment in question in which the damages are apportioned equally between Jack Adams and Ponape Rock Products, Inc. on one side and Ponape Agriculture and Trade School on the other is based on the fact that the defendants' respective faults are equal, and therefore in keeping with the spirit of our custom, each defendant's share of the damages due the Koike plaintiffs ought to be based on that defendant's percentage of his liability.  The factors thus considered do support the Pohnpei Supreme Court's judgment in apportioning the defendants liability.  None of the Koike plaintiffs' grounds for their motion show that the apportionment of damages and the several liability of the defendants is in error legally or otherwise.  The motion is merely for the convenience of the Koike plaintiffs, and it should be considered and balanced against the interests of the parties to the action and the overall interests of the Pohnpeian society in the development of tort law and tort practice in this jurisdiction.  The Pohnpei Supreme Court is convinced that the argument advanced by defendant PATS in opposition to the motion to alter or to amend judgment must prevail.

CONCLUSIONS
     Considering the premises and with due respect to Koike plaintiffs' effort, I must deny the motion to alter or amend judgment.  Motion denied.
                                                                                                                                                                                                                                                                                                           
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