JOSEPH F. BATAILLON, District Judge
Before me is the plaintiff's motion, Filing No. 137, to dismiss the defendant ARAMARK Uniform Career Apparel, Inc., from his suit to recover for personal injuries sustained while working at the defendant Railcar America, Inc., d/b/a American Hydraulics, Inc. ARAMARK manufactured the uniform that the plaintiff was wearing when injured. The plaintiff and ARAMARK have apparently settled.
Only defendant FM Industries, Inc., responded to the motion. See Filing No. 156. FM Industries has cross-claimed against ARAMARK for contribution and indemnity should the plaintiff obtain a judgment against FM Industries. Nebraska law provides that in a civil action with more than one defendant to which contributory negligence is a defense, the defendants are jointly and severally liable for the plaintiff's economic damages but only severally liable for the plaintiff's noneconomic damages. Neb. Rev. Stat. § 25-21,185.10. The statute further provides, "Each defendant shall be liable only for the amount of noneconomic damages allocated to that defendant in direct proportion to that defendant's percentage of negligence, and a separate judgment shall be rendered against that defendant for that amount." Id.
Nebraska law also provides, however, that if one defendant is released by or settles with the plaintiff, the plaintiff's claim against other defendants "shall be reduced by the amount of the released person's share of the obligation as determined by the trier of fact." Neb. Rev. Stat. § 25-21,185.11.
In opposing the plaintiff's motion, FM Industries argues that if ARAMARK is dismissed because of a settlement, FM Industries could be liable for "more than its proportionate share of economic damages in the event the jury determines that ARAMARK's proportionate share is greater than that received by Plaintiff Windom in his settlement with ARAMARK." Filing No. 156 at 3. To prevent that result, FM Industries asks the court to grant the plaintiff's motion to dismiss ARAMARK but to find, pursuant to §§ 25-21,185.10 and 25-21,185.11, that ARAMARK may still be liable to FM Industries on FM Industries' cross-claim for contribution if FM Industries is found liable for economic damages greater than its proportionate share. ARAMARK does not oppose the motion. Accordingly,
IT IS ORDERED:
1. The plaintiff's motion, Filing No. 137, to dismiss the defendant ARAMARK Uniform Career Apparel, Inc., is granted;
2. The plaintiff's claims against the defendant ARAMARK Uniform Career Apparel, Inc., are dismissed without prejudice, with each party to pay its own costs; and
3. The defendant ARAMARK Uniform Career Apparel, Inc., shall remain a party to the suit only for the purposes of the defendant FM Industries' cross-claim against ARAMARK for indemnity and contribution pursuant to Neb. Rev. Stat. §§ 25-21,185.10 and 25-21,185.11.