Kottler v. State , 136 Wash. 2d 437 ( 1998 )

Talmadge, J.

(concurring) — This case involves an apparent conflict between the 1981 Product Liability and Tort Reform Act, which allowed contribution among tortfeasors, and the 1986 tort reform act, which curtails the right of contribution in favor of a policy of several liability. I agree with the majority’s resolution because the statutory language and our case law compel its result. Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 290-99, 840 P.2d 860 (1992); Gerrard v. Craig, 122 Wn.2d 288, 298-99, 857 P.2d 1033 (1993); Anderson v. City of Seattle, 123 Wn.2d 847, 851-52, 873 P.2d 489 (1994).¹³

But I write separately to urge legislative attention toward the anomalous result this case requires. Both RCW 4.22.040 and .050 (as enacted in 1981) and RCW 4.22.070 (as enacted in 1986) have as their fundamental policy the full apportionment of fault to parties, but the effect of their application to these facts requires one tortfeasor to bear the entire responsibility for plaintiffs’ claims while allowing the other tortfeasors to escape any financial responsibility whatsoever for their wrongful conduct. An interpretation of the statutes that so fundamentally contradicts the intent of the Legislature in both the 1981 and 1986 tort legislation should not persist.

There is no right of contribution among tortfeasors absent the existence of joint and several liability. RCW 4.22.040(1). If the liability of the tortfeasors here is joint and several, Kottler and Olympic Rentals and ASL are entitled to pursue an action for contribution. RCW 4.22.040(2) provides:

Contribution is available to a person who enters into a settlement with a claimant only (a) if the liability of the person against whom contribution is sought has been extinguished by the settlement and (b) to the extent that the amount paid in settlement was reasonable at the time of the settlement.

Both RCW 4.22.040(1) and RCW 4.22.050(2) make it clear contribution may be pursued in a separate action, whether or not a judgment has been entered. The principal point of contention between the parties is whether joint and several liability exists so that contribution is possible.

RCW 4.22.030 establishes the general nature of liability in Washington:

Except as otherwise provided in RCW 4.22.070, if more than one person is liable to a claimant on an indivisible claim for the same injury, death or harm, the liability of such persons shall be joint and several.

Thus, the general principle in Washington established by the Legislature in 1981 is joint and several liability. Nevertheless, the 1986 Legislature carved out a large exception to joint and several liability that effectively swallows the general rule. In RCW 4.22.070, the Legislature provided for several liability in all actions involving the fault of more than one entity with a number of exceptions including: situations where parties were acting in concert, RCW 4.22.070(1)(a); actions where the claimant was without fault, RCW 4.22.070(1)(b); cases involving hazardous wastes or substances, or solid waste disposal sites, RCW 4.22.070(3)(a); cases involving tortious interference with contracts or business relations, RCW 4.22.070(3)(b); and causes of action involving the manufacture or marketing of fungible products, RCW 4.22.070(3)(c).

In the present case, the key question is whether RCW 4.22.070(1)(b), involving claimants without fault, provides for joint and several liability. The parties here allege the claimants are without fault. RCW 4.22.070(1)(b) states:

If the trier of fact determines that the claimant or party suffering bodily injury or incurring property damages was not at fault, the defendants against whom judgment is entered shall be jointly and severally liable for the sum of their proportionate shares of the claimants [sic] total damages.

The effect of this statute is significant as RCW 4.22.070(2) indicates:

If a defendant is jointly and severally liable under one of the exceptions listed in subsections (1)(a) or (1)(b) of this section, such defendant’s rights to contribution against another jointly and severally liable defendant, and the effect of settlement by either such defendant, shall be determined under RCW 4.22.040, 4.22.050, and 4.22.060.

The Legislature provides for joint and several liability of defendants if the plaintiff is without fault only if a judgment is entered against them. While we could interpret the statute to allow for joint and several liability where the parties settle prior to a judgment, such an interpretation would be contrary to the plain statutory language, as the majority determines.

The Legislature ought to amend RCW 4.22.070, however, to reach this result which is beneficial to both plaintiffs and defendants. Three key principles today animate Washington’s civil justice system and are reflected as goals of our tort law: (1) compensation to injured victims; (2) apportionment of fault to wrongdoers according to their share of fault; and (3) encouragement of settlements. See Washington State Senate Select Committee on Toet & Product Liability Reform Final Report 54 (Jan. 1981) (noting proposed tort reform legislation (1981 act) crafted with the purpose of not discouraging settlements); Senate Journal, 47th Legis. Reg. Sess. 636-37 (1981) (same). See also Brewer v. Fibreboard Corp., 127 Wn.2d 512, 531, 901 P.2d 297 (1995) (Legislature enacted the tort reform act to encourage settlement and to assure tort victims complete satisfaction of their claims); Seattle W. Indus., Inc. v. David A. Mowat Co., 110 Wn.2d 1, 5, 750 P.2d 245 (1988) (purpose of RCW 4.22 is to ensure full compensation to tort victims and encourage settlements). The 1986 amendments to RCW 4.22 did not purport to alter these goals. See Laws of 1986, ch. 305, § 100 (stating the intent of the Legislature to reduce costs associated with the tort system, while assuring adequate and appropriate compensation for persons injured through the fault of others).

The result we reach here meets none of these key principles. To allow contribution under RCW 4.22.040(2) where the plaintiff is without fault and, prior to judgment, a defendant settles all of the plaintiffs claims against all defendants would meet all of these principles.

To more effectively execute its intent, I hope the Legislature addresses and corrects this unfortunate situation in the tort law.

13 But see Kirk v. Moe, 114 Wn.2d 550, 789 P.2d 84 (1990) (suggesting joint and several liability and contribution might still be possible after the 1986 legislation where a plaintiff settled with an employer and the employer subsequently sued an employee for contribution).