                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 01-2094
                                 ___________

David Allen Archer; Sonia D. Archer,    *
                                        *
      Plaintiffs - Appellees,           *
                                        *
      v.                                *
                                        *
Pavement Specialist, Inc.,              *
                                        * Appeal from the United States
      Defendant - Appellant.            * District Court for the
                                        * Western District of Arkansas.
      v.                                *
                                        *   [TO BE PUBLISHED]
Shirley A. Sossamon,                    *
                                        *
      Third-Party Defendant - Appellee. *
                                 ___________

                           Submitted: December 10, 2001

                                Filed: January 30, 2002
                                 ___________

Before LOKEN and BYE, Circuit Judges, and BOGUE,* District Judge.
                              ___________
PER CURIAM.

     David and Sonia Archer’s children were killed when a car driven by Shirley
Sossamon rear-ended the Archers’ car on interstate highway 40. The Archers filed

      *
       The HONORABLE ANDREW W. BOGUE, United States District Judge for
the District of South Dakota, sitting by designation.
this wrongful death action against Pavement Specialist, Inc. (“PSI”), a contractor
performing repairs on I-40. PSI filed a third-party claim against Sossamon, but the
Archers did not assert a negligence claim against Sossamon, presumably because that
would have destroyed the federal court’s diversity jurisdiction. A jury found PSI 25%
at fault and Sossamon 75% at fault. The district court1 entered judgment against PSI
for the full $2,100,000 damage award, concluding that under Arkansas law PSI is
jointly and severally liable for the Archers’ total damages. PSI appeals, arguing it is
not liable for the 75% of the verdict attributable to Sossamon’s fault. We affirm.

          PSI’s argument is well-summarized in the concluding section of its brief:

             Inasmuch as the plaintiffs did not make a claim against the third-
      party defendant, the court should refuse to hold PSI jointly and severally
      liable for Sossamon’s 75%. The plaintiffs have elected their remedy by
      choosing not to sue Sossamon, in order to maintain their federal
      jurisdiction status and, therefore, it would be inequitable to saddle PSI
      with Sossamon’s portion of the responsibility for plaintiffs’ damages.

As the district court recognized, the difficulty with this argument is that under
Arkansas law, which governs this diversity action, when two or more tortfeasors are
jointly and severally liable in negligence, plaintiffs may recover in full from any one
of them without suing the others. See, e.g., Bill C. Harris Constr. Co. v. Powers, 554
S.W.2d 332, 337 (Ark. 1977); ARK. CODE ANN. § 16-61-203. In support of its
contrary contention, PSI relies on our decision in Christopherson v. Deere & Co., 941
F.2d 692 (8th Cir. 1991), in which a divided panel applying Iowa law affirmed a
district court that had adopted PSI’s equitable election-of-remedies argument in
holding defendant not jointly and severally liable for an absent tortfeasor’s percentage
of the fault. As the Archers note, the Supreme Court of Iowa later declared that the


      1
      The HONORABLE ROBERT T. DAWSON, United States District Judge for
the Western District of Arkansas.

                                          -2-
Christopherson majority had misinterpreted the Iowa law of joint and several liability.
See Pepper v. Star Equipment Ltd., 484 N.W.2d 156, 158 n.2 (Iowa 1992). But in
any event, Christopherson applied Iowa law, which was unclear at the time, whereas
this case is governed by a well-established principle of Arkansas law.

       Alternatively, PSI argues that this case is governed by Rule 14 of the Federal
Rules of Civil Procedure, rather than Arkansas law. Rule 14 deals with third-party
practice and procedure. PSI relies on Hiatt v. Mazda Motor Corp., 75 F.3d 1252 (8th
Cir. 1996). Hiatt involved Arkansas’ comparative fault statute, which precludes
recovery unless plaintiff’s fault is less than the combined fault of the “parties from
whom [plaintiff] seeks to recover damages.” ARK. CODE ANN. § 16-64-122(b). The
issue in Hiatt was whether the fault of third-party defendants should be included in
determining plaintiff’s comparative fault. We looked to Rule 14 in deciding that the
Arkansas statute does not encompass third-party defendants in diversity cases unless
plaintiff affirmatively asserted a claim against them. Thus, Hiatt was a proper
application of the well-settled rule “that in a suit based on diversity of citizenship
jurisdiction the federal courts apply federal law as to matters of procedure but the
substantive law of the relevant state.” 75 F.3d at 1255. Here, on the other hand, PSI
would have us violate that rule by holding that Rule 14, a federal procedural rule,
trumps the substantive rule of Arkansas law that plaintiff may recover in full from a
tortfeasor who is jointly and severally liable without suing the other tortfeasors.

      The judgment of the district court is affirmed.

      A true copy.

             Attest:

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



                                         -3-
