Passino v. Cascade Steel Fabricators, Inc.

BIVINS, Judge

(specially concurring).

I concur with the majority except the statement, “[although the result may seem harsh, any other holding would seriously weaken, and could even abolish the efficacy of default judgments.” That statement is correct in terms of apportioning fault following default, as was attempted here, but incorrect if interpreted to mean the trial court must award multiple recovery. While I am certain the majority does not intend multiple recovery since the case is remanded for hearing solely in “the amount of damages due plaintiff from Cascade,” I deem it necessary to file this separate opinion not only to make clear my understanding but also to state why I believe the result is not harsh.

The issue was presented as one involving the principles of comparative fault when, in fact, we are only concerned with damages. Following default, plaintiff is entitled to an award from the defaulting defendant, but the question is whether plaintiff can recover more than once for his injuries.

Our appellate courts have held that an injured party may recover only once for his loss. See Vaca v. Whitaker, 86 N.M. 79, 519 P.2d 315 (Ct.App.1974) and cases cited at page 82, 519 P.2d 315 thereof; W. Prosser, Law of Torts § 48 (4th ed. 1971). Applying that principle here means that the trial court, at the damage hearing, first determines the total amount of plaintiffs damages. Since plaintiff can recover only once, the amount paid in settlement by other parties must be deducted. The difference then is what the defaulting defendant pays.

By following this procedure we have not compared fault, but we have allowed only one recovery. This permits plaintiff to have the benefit of the default and, at the same time, prevents the unfairness of double recovery which the trial court sought to avoid. Compare the result here with Wilson v. Galt, 100 N.M. 227, 668 P.2d 1104 (Ct.App.1983), which allows an injured party to retain the benefits of his bargain with a settling tort-feasor without reduction of the amount of damages ultimately determined.

On remand, the trial court should follow the procedure as outlined.