Barton v. Department of Transportation

Madsen, C.J.

¶52 Parties can enter agreements that partially settle some claims without invoking RCW 4.22.060, and that is what occurred here. Since the agreement did not eliminate the Linvogs’ liability for contribution, it was not the type of agreement that falls within RCW 4.22.060.

¶53 Since this agreement is not a covenant not to enforce judgment as that term is used in RCW 4.22.060, it is not necessary in this case to decide whether a document that does fall within this statute is a release that also acts to release the party from joint and several liability under RCW 4.22.070. But if an agreement does fall within the scope of RCW 4.22.060 and settles the claims between the parties, the court should hold that it acts as a release for purposes of RCW 4.22.070. This conclusion follows from the *218plain language of RCW 4.22.060 and the interrelationship between RCW 4.22.060 and .070.

¶54 Finally, since RCW 4.22.060 is not applicable, the trial court abused its discretion in awarding sanctions for violation of the notice requirement in the statute. It follows that the State’s request for more severe sanctions under the statute should be denied.

Discussion

Nature of the Linvogs’ and Korrine’s Liability

¶55 It is important to understand the nature of the defendants’ potential liability in this case. Under the family car doctrine, Thomas and Madonna Linvog were exposed to liability for their daughter Korrine’s negligence in causing the injuries suffered by the plaintiff, Jared Barton. The Linvogs’8 potential liability arose “based on agency principles; that is, members of the family who are permitted to drive the automobile are agents of the owners.” 16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law and Practice § 3.23, at 139 (3d ed. 2012); see Coffman v. McFadden, 68 Wn.2d 954, 958, 416 P.2d 99 (1966) (“[a] parent is not liable for the torts of his child solely because of the relationship . . . liability, if any exists, must rest upon the relation of agency or service”). It does not arise when the parents of the driver neither own nor control the vehicle. 16 DeWolf & Allen, supra, § 3.23, at 139.

¶56 This type of liability comes within RCW 4.22-.070(l)(a), which provides that “[t]he liability of each defendant shall be several only and shall not be joint except . . . [a] party shall be responsible for the fault of another person or for payment of the proportionate share of another party . . . when a person was acting as an agent or servant of the party.” By the references to “party,” this subsection *219contemplates that Korrine’s parents had to be parties to the suit for this liability to arise. That is, unless the Linvogs remained as parties in the action, they would not be liable to the plaintiff for damages arising from Korrine’s negligence.

¶57 Korrine’s potential liability, on the other hand, falls within RCW 4.22.070(l)(b), which provides for joint and several liability when the plaintiff is fault free.9

The parties’ agreement did not “destroy” joint and several liability

¶58 The agreement says that the parties agreed and stipulated that the Linvogs’ insurer had paid $20,000 to Barton as an advance payment against any future settlement or verdict obtained against the “Defendants Korinne [sic] Linvog [and] her parents, Thomas and Madonna Linvog.” Clerk’s Papers (CP) at 924. It says this advance payment is to be an offset against “any judgment, verdict, arbitration award, or settlement obtained by Plaintiff Jared Barton against Defendants Korrine Linvog and/or Defendants Thomas and Madonna Linvog.” Id. at 924-25. In return for the advance payment, Barton agreed not to execute on any judgment he obtained against the Linvogs in excess of the liability insurance available to the Linvogs through their insurer. He would, however, be able to execute on any judgment against the Linvogs up to the amount of the insurance limits available. Finally, the agreement states that the advance payment does not represent a *220settlement of Barton’s claims “against Defendants.” Id. at 925.

¶59 The State maintains that the plaintiff and the Linvogs “achieved the imposition of improper joint liability against the State because the covenant not to execute was kept hidden. By doing so, they circumvented the abolition of joint liability that is at the core of” the tort reform act. Suppl. Br. of State of Wash., Dep’t of Transp. at 17. The State argues that the Court of Appeals improperly permitted the parties to determine the operative legal effect of a release and thereby override statutory mandates. The State says that the outcome of a statutory analysis cannot vary based on the litigants’ “financial whims.” Id. at 12.

¶60 But Barton did not agree not to execute on a judgment against Korrine. Moreover, the agreement accurately states that it is not a settlement against “Defendants,” who are identified in the document as both the Linvogs and Korrine. Because it had no effect on Korrine or her liability, the agreement plainly did not act as a settlement with regard to her.

¶61 The “fault” on which liability is based for both the Linvogs and Korrine is that of Korrine; the Linvogs’ liability is vicarious. With or without the agreement, Korrine’s fault was before the jury; the agreement did not remove Korrine’s share of fault from the scope of RCW 4.22.070’s apportionment scheme. The jury’s apportionment of fault between Korrine and the State meant that these two defendants were jointly and severally liable. Therefore, the agreement did not eliminate joint and several liability.

¶62 In addition, the parties to the agreement intended that it would affect only Barton’s ability to execute on the judgment against the Linvogs. The trial court’s unchallenged finding of fact is that the parties to the agreement believed and intended that the Linvogs were in fact still liable after they entered the agreement because the agreement had no effect on contribution rights. CP at 9. Nothing in the agreement itself purports to excuse the Linvogs from *221any liability for contribution. This is in marked contrast to the agreement at issue in Maguire v. Teuber, where a covenant not to execute expressly stated that it was intended to “ ‘complete [ly]’ ” resolve “ ‘all claims by the plaintiffs against [the] defendants’ ” who were parties to the agreement and “ ‘any and all contribution claims against those defendants will be extinguished by this settlement.’ ” 120 Wn. App. 393, 397-98, 85 P.3d 939 (2004) (emphasis omitted) (quoting agreement).

The agreement was not a “covenant not to enforce judgment” within the meaning ofRCW 4.22.060(2)

¶63 Because Korrine’s fault was still before the jury, and because any contribution rights against the Linvogs based on vicarious liability were not affected by the agreement, it was not an agreement that extinguished contribution rights and was not an “agreement” under RCW 4.22.060(2) “similar to” a “release” or a “covenant not to sue” that would “discharge [ ]” the Linvogs “from all liability for contribution.”

¶64 I recognize that the part of the agreement where Barton agreed not to execute on any judgment against the Linvogs on any amount in excess of the insurance limits raises the obvious question whether it is a covenant not to enforce judgment for purposes ofRCW 4.22.060. But as the majority states, contract law has a place here, and we should look to the entire document to see whether it is the kind of agreement “similar” to a “release” as RCW 4.22-.060(2) states.

¶65 What the parties call an agreement is not controlling. Even if Barton and the Linvogs had called their agreement a “covenant not to enforce judgment,” this would not control as to whether it fell within the scope of RCW 4.22.060(2) as equivalent to a “release.” In a similar vein, the parties’ statement that the agreement was not a settlement, in and of itself, does not determine how it should be *222treated, either. Rather, the operative effect of the agreement controls and this must be determined with regard to all that the document provides.

¶66 I would hold that the agreement does not come within RCW 4.22.060, thus ending the case.

The majority errs in deciding that an agreement that falls within RCW 4.22.060 does not release the party for purposes of RCW 4.22.070’s determination of joint and several liability

¶67 It follows that this case does not require us to decide whether a covenant not to enforce judgment under RCW 4.22.060 is necessarily a release under RCW 4.22.070. But while it is unnecessary to construe the term “release” as used in RCW 4.22.070, since the majority has done so, I turn to that issue next.

¶68 The majority improperly declines to construe the term “release” in the statutory context in which it appears and instead relies on dictionary and other definitions to conclude that an agreement that comes within RCW 4.22.060 does not necessarily release the party for purposes of RCW 4.22.070. But the majority’s resort to these definitions does not follow our well-developed approach to discerning the meaning of language in statutes.

¶69 The goal when construing a statute is to ascertain and give effect to the legislature’s intended meaning. We determine legislative intent from the meaning of the words at issue, the context of the statute in which the provision at issue is found, related provisions and statutes that bear on the meaning of the language at issue, and the statutory scheme as a whole. Manary v. Anderson, 176 Wn.2d 342, 352, 292 P.3d 96 (2012); Lowy v. PeaceHealth, 174 Wn.2d 769, 779, 280 P.3d 1078 (2012); Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002). Rather than deliberately ignoring the related statutory provisions as the majority does, we should examine them as the best indicator of legislative intent.

*223¶70 Both RCW 4.22.060 and .070 use the word “release.” In RCW 4.22.060, the legislature listed several types of settlement agreements, expressly equating them within the statute to a “release” (“[a] release, covenant not to sue, covenant not to enforce judgment, or similar agreement” (emphasis added)). This statutory provision itself shows that an agreement that comes within the statute is to be regarded as a release. See Cornelius J. Peck, Reading Tea Leaves: The Future of Negotiations for Tort Claimants Free from Fault, 15 U. Puget Sound L. Rev. 335, 344 (1992) (“RCW 4.22.060 refers to ‘a release, covenant not to sue, covenant not to enforce judgment, or similar agreement’ as being interchangeable for the purpose of determining the effect of a settlement agreement.”).

¶71 In addition to equating the listed agreements with a release, RCW 4.22.060 provides that these agreements operate to extinguish contribution obligations, as noted. When considered in connection with RCW 4.22.070, this part of RCW 4.22.060 supports the conclusion that an agreement falling within RCW 4.22.060 operates as a release for purposes of RCW 4.22.070.

¶72 RCW 4.22.070(1) states in part that “entities whose fault shall be determined include . . . entities released by the claimant” and “[j]udgment shall be entered against each defendant except those who have been released by the claimant.” RCW 4.22.070(2) says that a jointly and severally liable defendant’s rights to contribution against another jointly and severally defendant and the effect of a settlement by either is determined under RCW 4.22.040, .050, and .060. Thus, the right to contribution mentioned in RCW 4.22.070 that is determined under RCW 4.22.040, .050, and .060 is a right that arises among jointly and severally liable defendants, but it cannot not arise under the agreements listed in RCW 4.22.060.

¶73 This interrelationship of the statutes, too, shows that the agreements listed in RCW 4.22.060 do operate to release an entity for purposes of joint and several liability *224under RCW 4.22.070. And in fact, this is the construction favored by a leading authority on the 1986 tort reform laws. Peck, supra, at 335, 343-44.

¶74 Unlike the majority, I would hold that an agreement that comes within RCW 4.22.060, and which is equivalent to a “release” as expressly provided by the statute, acts to release the party for purposes of the apportionment of liability under RCW 4.22.070.

¶75 Next, I disagree with the majority’s overruling of the analysis in Maguire regarding the issue whether the agreements in those cases released the defendants who were party to them. The agreement at issue in Maguire was a covenant not to enforce judgment within the scope of RCW 4.22.060. The Court of Appeals appropriately concluded that it operated to release the defendants who were a party to it and therefore these defendants should have been dismissed from the case. The covenant stated that the parties were settling “ Tor the purpose of avoidance of the uncertainties, inconvenience, and expenses of the pending lawsuit’ ” and that the covenant “ ‘is intended to constitute a complete resolution of all claims by the plaintiffs against defendants Teuber and Hadsall under RCW 4.22.060 such that any and all contribution claims against those defendants will be extinguished by this settlement.’ ” Maguire, 120 Wn. App. at 397-98 (quoting covenant).

¶76 Because it was an agreement coming within RCW 4.22.060, it released the two defendants for purposes of RCW 4.22.070, as explained above. The court’s analysis in the case is well reasoned and consonant with the relevant statutes.

¶77 As with Maguire, I disagree with the majority’s partial overruling of Romero v. West Valley School District, 123 Wn. App. 385, 98 P.3d 96 (2004). Romero involves a classic “Mary Carter” agreement. It provided that the defendant who was party to the agreement would pay the limits of insurance and the plaintiffs agreed that if they recovered more than the insurance limits from the remain*225ing defendant, the defendant-party to the agreement would be reimbursed by the plaintiffs $1 for every $2 the plaintiffs recovered in excess of the insurance. The parties agreed the settling defendant would remain in the suit as a defendant. In such circumstances, there is a strong incentive on the part of the settling defendant and the plaintiff to skew the trial against the remaining defendant. The Court of Appeals, relying on Maguire, concluded in Romero that the agreement released the settling defendant and held that the remaining defendant was severally liable only for the portion of the damages due to its own fault.

¶78 When an agreement manipulates joint and several liability as the agreement did in Romero, and aligns the plaintiffs and all but one of the potentially liable defendants against the remaining defendant, a court should conclude that joint and several liability has been destroyed. For this reason, at the least, such an agreement should be held to release the settling defendants. Otherwise, their presence at trial and in the jury’s calculations can result in unfair joint and several liability on the part of the non-settling defendant.

Sanctions

¶79 The State maintains that a more severe sanction should be imposed for failure to notify it of the “secret” agreement between Barton and the Linvogs. The majority concludes that the failure to disclose the parties’ agreement violated CR 26(e)(2) as a failure to seasonably amend or supplement discovery requests and violates RCW 4.22-.060(1), which requires that “prior to entering into a release, covenant not to sue, covenant not to enforce judgment, or similar agreement with a claimant” a party must “give five days’ written notice of such intent to all other parties and the court.” The majority therefore holds that the trial court did not err in exercising its discretion to impose the sanctions. The majority denies, however, the State’s request for more severe sanctions.

*226¶80 Although the majority states that Barton and the Linvogs concede they failed to comply with the notice requirement of RCW 4.22.060, majority at 216, this does not appear to be the case. Rather, Barton concedes some sanction was appropriate under the civil rule, but not a greater sanction as urged by the State. The Linvogs do not concede the propriety of sanctions under the statute, either.

¶81 Because the court should hold that the agreement is not a “covenant not to enforce judgment” as contemplated under RCW 4.22.060(2), it should similarly hold the agreement does not come within RCW 4.22.060(1). The statutory notice provision does not apply, and sanctions are not appropriate on this basis. I would conclude that the trial court abused its discretion in awarding sanctions under the statute and agree that the State’s request for additional (more severe) sanctions under the statute should be denied.10

Conclusion

¶82 I would hold that the agreement between Barton and the Linvogs is not a “covenant not to enforce judgment” as this term is used in RCW 4.22.060. Korrine and the State both remained as defendants at trial, neither was a party to the agreement, and together they were responsible for 100 percent of fault, once Barton was determined to be a fault-free plaintiff. They were jointly and severally liable. No settlement occurred that reduced liability for total damages because Korrine remained exposed to direct liability and the Linvogs remained, under the parties’ agreement, exposed to liability for contribution. In these circumstances there was no prejudice to the State and no additional sanctions are appropriate.

Wiggins, J., concurs with Madsen, C.J.

For clarity, I refer to Thomas and Madonna Linvog as “the Linvogs” and to Korrine Linvog as “Korrine.”

ROW 4.22.070 provides:

(1)... The liability of each defendant shall be several only and shall not be joint except:
(b) 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 [claimant’s] total damages.

(Third alteration in original.)

My disagreement extends to the award of sanctions only insofar as it is based on RCW 4.22.060.1 do not disagree that the award may be appropriate under CR 26.