Scott v. Cascade Structures , 100 Wash. 2d 537 ( 1983 )

Stafford, J.

Appellant, Arlene Scott, personal representative of her husband's estate, appeals from a $130,000 judgment entered against respondent, Cascade Structures Corp. (Cascade). Appellant asks this court to interpret the contribution statute, RCW 4.22.060(2), to determine whether a reasonable settlement award should be subtracted from the jury verdict before or after subtracting decedent's contributory negligence. Appellant further challenges the constitutionality of the tort and products liability reform act, RCW 4.22 and 7.72. We affirm the trial court's method of computation and reject appellant's constitutional challenge.

On November 1, 1979, Paul Scott was killed when he fell from the roof of a building then under construction. His widow and personal representative, Arlene Scott, brought a wrongful death action against respondent, Cascade, the roofing subcontractor; Aldrich and Hedman Construction Co., the general contractor; Pacific Cascade Corp., owner of the building; Lane Co., the developer; Ebert Pearson, a safety inspector for the Department of Labor and Industries; and the State of Washington. Prior to trial, appellant's claims against the State and Pearson were dismissed on summary judgment. The cross claims of the remaining defendants against the State were also settled and dismissed.

Trial on the wrongful death action began on May 7, 1982, with respondent Cascade, Aldrich and Hedman Construction Co., Lane Co., and Pacific Cascade Corp. as defendants. After several days of trial, appellant and all remaining defendants except respondent Cascade reached a settlement agreement whereby appellant would receive $60,000 in return for a covenant not to sue. The trial judge held a reasonableness hearing pursuant to RCW 4.22.060(1) and determined that $60,000 was reasonable, thereby extinguishing respondent Cascade's cross claims for contribution against the settling defendants. The trial continued with respondent Cascade as the only defendant.

The trial court gave to the jury a series of four questions to which the jury responded as follows:

Question No. 1: Was there negligence by the defendant Cascade Structures which was a proximate cause of the death of Paul Scott?

Answer: Yes.

Question No. 2: What is the total amount of plaintiff's damages?

Answer: $570,000.

Question No. 3: Was there negligence by the decedent Paul Scott which was a proximate cause of his death?

Answer: Yes.

Question No. 4: Using 100% as the total combined negligence of Cascade Structures and Paul Scott which contributed to the injury or damage to the plaintiff, what percentage of such negligence is attributable to Paul Scott?

Answer: 66-2/3%.

Over appellant's objection, the trial court first reduced the total damage award by 66% percent (i.e., the amount of contributory negligence), then subtracted the $60,000 settlement award, and finally entered judgment against respondent Cascade for $130,000 plus costs. Appellant contends the trial court should have subtracted the settlement award before deducting for the contributory negligence. Under appellant's method of computation, she would be entitled to $170,000. Cascade has paid the $130,000 judgment plus costs into the registry of the court. Appellant has since withdrawn these funds.

I

We turn first to Cascade's contention that by accepting and using the $130,000 judgment, appellant has waived her right to appeal.

Cascade relies on RAP 2.5(b) which provides:

(b) Acceptance of Benefits.

(1) Decision Subject to Modification. A party may accept the benefits of a trial court decision without losing the right to obtain review of that decision only (i) if the decision is one which is subject to modification by the court making the decision or (ii) if the party gives security as provided in subsection (b)(2).

(2) Other Decisions — Security. If a party gives adequate security to make restitution if the decision is reversed or modified, a party may accept the benefits of the decision without losing the right to obtain review of that decision. The trial court making the decision shall fix the amount and type of security to be given by the party accepting the benefits.

Cascade asserts that the instant appeal must be dismissed because the trial court judgment is not subject to modification by that tribunal and appellant has not provided the required security. While Cascade's quotation of RAP 2.5(b) is accurate, the rule is not applicable here.

The purpose of RAP 2.5(b) is to ensure that a party seeking review will be able to make restitution if a decision is reversed or modified on appeal. See Comment, RAP 2.5(b)(2), 86 Wn.2d 1152 (1976). In the instant case it is clear the amount of the jury verdict, which resulted in an award of $130,000, is not subject to reduction by this court. The only question is whether appellant is entitled to $40,000 more. Since this is not a case in which restitution may be required, there is no need for appellant to provide security.

Moreover, this court has stated that a party may proceed with an appeal after receiving the benefits of the judgment if that party would be entitled to the benefits regardless of the outcome of the appeal. Hinchman v. Point Defiance Ry., 14 Wash. 349, 356, 44 P. 867 (1896). See also Grignon v. Wechselberger, 70 Wn.2d 99, 101, 422 P.2d 25 (1966). This is consistent with the rule in other jurisdictions. Annot., Right of Appeal From Judgment or Decree as Affected by Acceptance of Benefit Thereunder, 169 A.L.R. 985, 1010 (1947). We therefore hold appellant has not waived her right to appeal.

II

Appellant's primary contention is that the trial court erred in its method of calculating the amount of final judgment. Prior to 1981, contribution among joint tortfeasors was generally prohibited. Wenatchee Wenoka Growers Ass'n v. Krack Corp., 89 Wn.2d 847, 576 P.2d 388 (1978). With the enactment of the Tort Reform Act in 1981, the Legislature overruled the common law and established a right of contribution between joint tortfeasors. Laws of 1981, ch. 27, § 12, codified as RCW 4.22.040. In creating a right of contribution, the Legislature sought to encourage settlement agreements between parties. Senate Journal, 47th Legislature (1981), at 635-36. RCW 4.22.060(2) addresses the effect of a settlement agreement by providing:

A release, covenant not to sue, covenant not to enforce judgment, or similar agreement entered into by a claimant and a person liable discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the claim of the releasing person against other persons is reduced by the amount paid pursuant to the agreement unless the amount paid was unreasonable at the time of the agreement in which case the claim shall be reduced by an amount determined by the court to be reasonable.

(Italics ours.)

The controversy herein centers on what is meant by "the claim of the releasing party against other persons". Appellant contends her "claim" is the total damages sustained as a result of her husband's death, i.e., $570,000. Appellant accordingly suggests the judgment should be calculated as follows:

Plaintiff's gross damages (the "claim") $570,000

Amount paid in settlement (60,000)

$510,000

Plaintiff's share of negligence $510,000 x % (340,000)

Plaintiff's judgment against nonsettling defendant $170,000

This will be referred to as the "gross damages" approach. Under this approach, the figure of $510,000 would represent the total claim against the nonsettling defendant, respondent Cascade, from which plaintiff's share of the negligence vis-a-vis Cascade should be deducted.

The trial court construed appellant's "claim" as being the ultimate amount attributable to the negligence of others, i.e., $190,000. The court therefore computed damages as follows:

Plaintiff's gross damages $570,000

Plaintiff's share of negligence $570,000 x 2/3 (380,000)

Plaintiff's damages attributable to of others (the "claim") $190,000

Amount paid in settlement (60,000)

Plaintiff's judgment against nonsettling defendant $130,000

This will be referred to as the "net damages" approach.

Appellant's proposed "gross damages" approach relies on a case decided shortly before enactment of the Tort Reform Act. DeMaris v. Brown, 27 Wn. App. 932, 621 P.2d 201 (1980), review denied, 95 Wn.2d 1014 (1981). In DeMaris, the Court of Appeals was faced with a situation identical to the one at hand. After setting forth the issue, the Court of Appeals concluded "the $10,000 settlement must first be deducted from the plaintiffs' total damages." DeMaris, at 945.

Appellant argues that because the Legislature did not expressly overrule this case in adopting the Tort Reform Act, DeMaris is still controlling. Although we did reaffirm the presumption that new legislation is consistent with prior case law in Glass v. Stahl Specialty Co., 97 Wn.2d 880, 887-88, 652 P.2d 948 (1982), this rule of construction is inapposite. DeMaris was decided under a common law scheme which recognized a right of indemnity while prohibiting contribution between joint tortfeasors. Enactment of the Tort Reform Act radically changed the common law rules of tort liability. Therefore, the basis upon which DeMaris was decided is no longer valid.

We further note that while the Court of Appeals had issued its decision in DeMaris before the 1981 legislative session, the Tort Reform Act was passed by the Senate while DeMaris was still pending on a petition for review by this court. In fact, the act was signed into law only 9 days after we denied review. Under these circumstances, a presumption the Legislature did not intend to overrule DeMaris is unrealistic. We find DeMaris is no longer of precedential value. We instead focus on which method of calculation best reflects both the language and the underlying policy of RCW 4.22.060(2).

Cascade supports its contention that the trial court correctly computed the damages by relying on the Senate Report as an indication of legislative intent. According to the Senate Select Committee that drafted the Tort Reform Act, "[RCW 4.22.060] differs from the Uniform Comparative Fault Act in that the final judgment of the claimant is reduced by the amount paid for a release . . . instead of the comparative fault of the released party as determined in the lawsuit." (Italics ours.) Senate Journal, 47th Legislature (1981), at 636. Cascade argues that by using the words "final judgment", the Legislature intended that the settlement award be deducted after reducing for the plaintiff's comparative negligence. Cascade further notes that a law review article written by the chairman of the drafting committee directly supports the approach taken by the trial court. Talmadge, Washington's Product Liability Act, 5 U. Puget Sound L. Rev. 1, 19 n.78 (1981).

We have consistently held that the comments of individual legislators cannot be used to establish the intent of the entire legislative body. Woodson v. State, 95 Wn.2d 257, 623 P.2d 683 (1980). Nevertheless, the method of calculation used in Senator Talmadge's example is of some interest. See Johnson v. Continental W., Inc., 99 Wn.2d 555, 663 P.2d 482 (1983). See also Snow's Mobile Homes, Inc. v. Morgan, 80 Wn.2d 283, 494 P.2d 216 (1972). This is particularly true when the comment is made by the legislator who chaired the drafting'committee. Regardless of Senator Talmadge's article, however, we find the method of calculation employed by the trial court most accurately reflects the language and purpose of the contribution statute. Moreover, the trial court's method of calculation is consistent with the jury's verdict.

By applying the reduction for decedent's negligence to the total damage award before deducting the settlement award, the trial court reduced the appellant's damages in proportion to the amount of negligence attributable to the person recovering. Under the gross damages approach, however, the percentage of fault attributable to the decedent would fall below the actual percentage determined by the jury. In the instant case, a $170,000 recovery plus a $60,000 settlement, for a total award of $230,000, would represent only 60 percent fault attributable to the decedent rather than the 662/3 percent determined by the jury.

The purpose of the contribution statute is to ensure that a plaintiff receives that to which he or she is entitled. Accordingly, we conclude the proper method of calculation is to reduce the jury award by the percentage of fault attributable to the plaintiff before deducting the settlement award. This result is consistent with that reached by a California court interpreting a statute substantially similar to RCW 4.22.060(2). Lemos v. Eichel, 83 Cal. App. 3d 110, 147 Cal. Rptr. 603 (1978) (construing Cal. Civ. Proc. Code § 877 (West 1980)).

Ill

Appellant contends that even if the trial court was correct in its interpretation of RCW 4.22.060(2), the entire act, Laws of 1981, ch. 27, is unconstitutional under Const, art. 2, § 19.¹ We do not agree. This argument is inherently flawed in view of our recent decision in State v. Grisby, 97 Wn.2d 493, 647 P.2d 6 (1982). See also State v. Huntley, 99 Wn.2d 27, 658 P.2d 1246 (1983).

In both Grisby and Huntley, this court reiterated the rule that as long as there is a rational nexus between the general subject as reflected in the title, and the subsections, the statute will meet the test of Const, art. 2, § 19. Kueckelhan v. Federal Old Line Ins. Co., 69 Wn.2d 392, 403, 418 P.2d 443 (1966). This court also reaffirmed the principle that Const, art. 2, § 19 should be liberally construed so as to sustain the validity of a legislative enactment. See Huntley, at 29.

RCW 4.22.060 was enacted in 1981 as section 14 of Laws of 1981, ch. 27, entitled:

An Act Relating to tort actions; amending section 2, chapter 138, Laws of 1973 1st ex. sess., and RCW 4.22-.020; creating new sections; adding new sections to Title 7 RCW as a new chapter thereof; adding new sections to chapter 4.22 RCW as a part thereof; and repealing section 1, chapter 138, Laws of 1973 1st ex. sess. and RCW 4.22.010.

The provisions of the act all relate to tort actions, with a special emphasis on the issue of products liability. Under a liberal construction of Const, art. 2, § 19, the act easily meets the "rational unity" test. We therefore find appellant's challenge to be without merit.

The trial court is affirmed.

Brachtenbach, Dolliver, Dore, Dimmick, and Pearson, JJ., concur.

1 Const. art. 2, § 19. "No bill shall embrace more than one subject, and that shall be expressed in the title."