                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 00-1820
                                  ___________

Marion Nolan Smith, individually and    *
as next friend and natural guardian;    *
Steven Norris Smith, individually and   *
as next friend and natural guardian;    *
Sean Patrick Smith, a minor child by    *
and through his natural parents,        *
                                        *
             Plaintiffs-Appellees,      *
                                        *
      v.                                *
                                        *
Best Western New Tower Inn, also        * Appeal from the United States
known as New Tower Hotel Courts,        * District Court for the District of
Inc.;                                   * Nebraska.
                                        *
             Defendant,                 *      [PUBLISHED]
                                        *
Best Western International, also        *
known as Best Western, Inc., a          *
Corporation;                            *
                                        *
             Defendant-Appellant,       *
                                        *
Frank Blazek,                           *
                                        *
             Defendant.                 *
                                   ___________

                            Submitted: December 11, 2000

                                 Filed: January 29, 2001
                                    ___________

Before LOKEN, HEANEY, and FAGG, Circuit Judges.
                            ___________

PER CURIAM.

       Sean Patrick Smith, a minor, suffered brain atrophy after he nearly drowned in
the swimming pool at the Best Western New Tower Inn (the Inn), an independently
owned and operated affiliate of Best Western International (BWI). Smith's parents
brought this diversity action against the Inn and BWI for negligence, breach of implied
warranty, and negligent infliction of emotional distress. During the jury trial, the Inn
and the Smiths entered into a high-low agreement. Following the close of all evidence,
the district court directed a verdict in BWI's favor on claims that it was independently
negligent, but the court submitted the case to the jury on the claim that the Inn was an
agent of BWI. The jury found the Inn was negligent and, although there was no actual
agency relationship between the Inn and BWI, the Inn was BWI's apparent agent. The
jury awarded the Smiths $55,000 for future medical expenses, which the district court
reduced to $49,500 to account for contributory negligence, and $6,910,373 in damages.
The district court entered judgment against both BWI and the Inn for the full amount,
and denied BWI's post-trial motions. Under the high-low agreement, the Inn paid the
Smiths six million dollars.

      On appeal, BWI argues it is entitled to judgment as a matter of law for two
reasons. First, BWI contends the Smiths' agreement with the Inn extinguished liability
and released the claims against BWI. Second, BWI asserts there was no apparent
agency relationship between BWI and the Inn, and the Smiths did not reasonably rely
on any apparent agency in deciding to stay there. The district court concluded that
under Nebraska law, the agreement did not discharge BWI because the agreement
expressly reserved the Smiths' right to proceed against BWI for collection of any
verdict. As for apparent agency, the district court examined state law and concluded

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there was sufficient evidence introduced at trial to submit the issue to the jury. Having
carefully reviewed the record, we agree with the district court and affirm this diversity
case for the reasons stated in the district court's memorandum and order. See 8th Cir.
R. 47B.

Loken, Circuit Judge, dissenting.

      No negligence by Best Western International contributed to Sean Smith’s tragic
accident in the New Tower Inn pool. BWI is vicariously liable to Smith and his parents
only because the jury found that the Inn was negligent and that it acted as BWI’s
apparent agent. In my view, the finding of apparent agency was dubious, but it was
within the jury’s fact-finding prerogative.

       During the trial of the Smiths’ claims against the Inn and BWI, the Smiths settled
with the Inn, agreeing to a “high-low” settlement pursuant to which they would receive
not less than $4,000,000 nor more than $6,000,000 when final judgment was entered.
The jury returned a verdict of over $6,900,000 in favor of the Smiths. BWI argued its
vicarious liability was extinguished when the Smiths settled with its agent, the Inn.
Construing NEB. REV. STAT. § 25-21,185.11, the district court held that BWI must pay
the portion of the judgment that exceeds the Inn’s $6,000,000 settlement because the
settlement agreement expressly reserved “all claims against Best Western International
for collection of any verdict.” This court now summarily affirms that ruling. I conclude
this decision disregards the plain language of the Nebraska statute. Accordingly, I
respectfully dissent.

       Under the common law of Nebraska, “settlement with the agent constitutes a
settlement with the principal, no matter what the parties may have intended.” McCurry
v. School Dist. of Valley, 496 N.W.2d 433, 444 (Neb. 1993). McCurry was decided
shortly after enactment of a 1992 Nebraska statute modifying common law principles


                                          -3-
of contributory negligence and joint tortfeasor liability. That statute included the
provision here at issue:

             25-21,185.11. Civil actions to which contributory negligence is
      a defense; release, covenant not to sue, or similar agreement; effect.
      (1) A release, covenant not to sue, or similar agreement entered into by
      a claimant and a person liable shall discharge that person from all liability
      to the claimant but shall not discharge any other persons liable upon the
      same claim unless it so provides. The claim of the claimant against other
      persons shall be reduced by the amount of the released person’s share of
      the obligation as determined by the trier of fact.

Because the cause of action in McCurry arose before the statute’s effective date, see
§ 25-21,185.07, the court declined to consider “the impact, if any, of § 25-21,185.11”
on the common law rule that a vicariously liable principal is released when the claimant
settles with the primarily liable agent. 496 N.W.2d at 444. This case presents that
open question of Nebraska law.

       The issue has arisen in many States that have modified by statute the common
law principles of contributory negligence, contribution, and joint tortfeasor liability.
Most States have enacted some version of the Uniform Contribution Among
Tortfeasors Act (UCATA). See 12 U.L.A. 185 (1996). Judicial decisions in those
States are sharply divided on the question whether enactment of UCATA abrogated the
common law rule that settlement with an agent releases a vicariously liable principal,
even if the settlement agreement is silent or expresses a contrary intent. Compare, e.g.,
Alvarez v. New Haven Register, Inc., 735 A.2d 306 (Conn. 1999), with Saranillio v.
Silva, 889 P.2d 685 (Haw. 1995).

      The Nebraska Legislature in 1992 elected not to enact a form of the UCATA.
Thus, the cases construing the relevant UCATA provisions are not much help in
construing § 25-21,185.11(1). The statute most analogous to Nebraska’s appears to

                                          -4-
be IOWA CODE § 668.7, which the Supreme Court of Iowa construed as not affecting
the common law rule that settlement with an agent extinguishes the vicarious liability
of a principal. See Biddle v. Sartori Mem’l Hosp., 518 N.W.2d 795, 798-99 (Iowa
1994). BWI relies heavily upon Biddle. But the Iowa and Nebraska statutes are not
identical, so we cannot be sure how much weight the Supreme Court of Nebraska
would give that decision by the highest court of a neighboring State.

        The district court focused on the language in § 25-21,185.11(1) broadly and
categorically declaring that a settlement with one party “shall not discharge any other
person liable on the same claim unless it so provides.” Because the Smiths’ settlement
agreement with the Inn “expressly reserved all their rights against BWI,” the district
court reasoned, “in light of § 25-21,185.11 the agreement did not discharge BWI.”
Even though this statute is couched in the language of contribution among joint
tortfeasors, I will assume for the sake of argument that the Legislature intended it to
apply to this case, where the vicariously liable principal, BWI, is entitled to indemnity
from the primarily liable agent, the Inn. But even if the statute applies, and therefore
BWI was not “discharged” as a result of the Smiths’ settlement with the Inn, the district
court -- and now this court -- ignore the immediately following sentence in § 25-
21,185.11(1), which provides that settlement with one tortfeasor reduces the claimant’s
claims against other persons “by the amount of the released person’s share of the
obligation as determined by the trier of fact.” In this case, the Inn’s “share of the
obligation” is 100% because its liability is primary. Thus, under § 25-21,185.11(1), the
Smiths’ release of the Inn as agent released 100% of their claim against BWI as
principal, whether or not the ultimate verdict exceeded the $6,000,000 paid by the Inn
in settlement, and whether or not the Smiths purported to reserve their claims against
BWI in the settlement agreement.

     For the foregoing reasons, I would reverse and remand with instructions to enter
judgment in favor of BWI.


                                          -5-
A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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