(concurring) — I agree with the majority’s analysis of whether a tortfeasor’s one-half interest in community personal property may be reached to satisfy a judgment based on a separate tort committed prior to marriage when the separate property is insufficient to satisfy a judgment. I write separately because I would treat the attorney fee award under MAR 7.3 differently than does the majority.
By its terms, MAR 7.3 allows an award of attorney fees after a trial de novo on a matter originally decided by an arbitrator if the party appealing an arbitrator’s decision “fails to improve the party’s position on the trial de novo.” The Court of Appeals in Wilkerson v. United Investment, Inc., 62 Wn. App. 712, 717, 815 P.2d 293 (1991), was correct in holding this phrase requires a court to “compare comparables.”
In specific, the court deciding if a party improved its position in comparison to the arbitration result for purposes of MAR 7.3 should compare the award of damages, exclusive of costs and attorney fees. Failing this, any party appealing the arbitrator’s award and recovering the identical award of compensatory damages would always improve its position because it would recover additional interest and more attorney fees would be incurred. This would be inconsistent with the purpose of MAR 7.3 which is to discourage appeals from arbitrator decisions. Indeed, MLAR 7.3 is a vital aspect of the overall public policy of utilizing mandatory civil arbitration to relieve court congestion. RCW 7.06.060; Christie-Lambert Van & Storage Co. v. McLeod, 39 Wn. App. 298, 303, 693 P.2d 161 (1984). The award of fees under this provision should compel parties to assess the arbitrator’s award and the likely outcome of a trial de novo with frankness and prudence; meritless trials de novo must be deterred. To best advance this policy, courts should compare the true comparables: the compensatory damages awarded *160by the arbitrator with the compensatory damages awarded in the trial de novo.10
This rule is the general tradition in Washington. See, e.g., Sims v. KIRO, Inc., 20 Wn. App. 229, 238, 580 P.2d 642 (1978) (attorney fees and expert witness fees not considered costs for purposes of CR 68); RCW 4.84.250, .270 (requiring consideration of damages exclusive of costs); Northside Auto Serv., Inc. v. Consumers United Ins. Co., 25 Wn. App. 486, 492, 607 P.2d 890 (1980) (accumulation of interest not considered in deciding jurisdictional amount under RCW 4.84.250); Mackey v. Am. Fashion Inst. Corp., 60 Wn. App. 426, 431-32, 804 P.2d 642 (1991) (attorney fees not an element of damages for purposes of stating amount pleaded under RCW 4.84.250).
Under the analysis set forth above, Jeffrey Haley recovered $2,500 in compensatory damages from the arbitrator. Haley recovered $2,500 in compensatory damages after the trial de novo. Haley did not improve his result. Carl Highland was entitled to an award of attorney fees under MAR 7.3.11
In Christie-Lambert, the Court of Appeals allowed an award of attorney fees to the appellant although the respondent improved its overall position in the trial de novo over the result at arbitration. The respondent accomplished the better result by asserting an entirely new additional claim in the trial de novo. The court allowed fees under MAR 7.3 because, as to the issues litigated at arbitration and litigated in the trial de novo, the respondent’s position on compensatory damages did not improve.
Parenthetically, this case illustrates precisely why an award of fees is appropriate. This case has persisted in litigation long beyond the realm of the rational.