Scott v. Cascade Structures

Utter, J.

(dissenting) — I dissent. The comparative fault of decedent was calculated not as a percentage of total fault, but as a percentage of the fault of the parties remaining in the action. Logically, this limited comparative fault figure should be applied not to total damages but to only those damages attributable to the parties remaining in the action. This latter figure is approximated by deduction of a reasonable settlement from total damages before multiplying by the plaintiff's comparative fault. I believe this approach is the one which should have been taken in the present case and the one which must have been intended by the Legislature.

The key to understanding the problem presented lies in identifying the nature of the "comparative fault" of the decedent by which plaintiff's damages were initially reduced. The percentage fault which the jury was instructed to determine was not, as the majority seems to assume, decedent's fault as a percentage of the total fault causing his death. Rather, the fault determined by the jury was decedent's fault as a percentage of some fraction of the *547total fault, namely total fault less the fault of the settling defendants. See Clerk's Papers, at 2 (jury to determine percentage of negligence attributable to decedent "[u]sing 100% as the total combined negligence of Cascade Structures and [decedent]"). The reason for using this artificial figure is to avoid litigating the fault of parties not present. See Senate Select Committee on Tort Reform and Product Liability, 2 Hearing Transcripts, June 27, 1980, at 22-23 (testimony of Ron Bland), July 25, 1980, at 11 (comments of Senator Talmadge).

So characterizing the jury's determination of decedent's fault points up a fallacy in the majority's reasoning that it would be inequitable to reduce plaintiff's recovery by only 60 percent when the jury determined that decedent was 662% percent at fault. The 66% percent figure determined by the jury did not represent a conclusion that decedent was responsible for two-thirds of the total damages, but only that decedent was responsible for two-thirds of the portion of the damages caused by him and the remaining defendant, Cascade Structures.

Had the jury been asked to apportion fault between decedent, Cascade Structures, and the settling defendants, it might well have found decedent 60 percent at fault, Cascade 30 percent at fault, and the settling defendants 10 percent at fault. If so, the $230,000 recovery under plaintiffs proposed approach, equal to plaintiff's total damages less 60 percent, would be perfectly appropriate. If decedent were 50 percent at fault, Cascade were 25 percent at fault, and the settling defendants 25 percent at fault, a scenario also consistent with the jury verdict, even a $230,000 recovery would be insufficient. To paraphrase the Court of Appeals in DeMaris v. Brown, 27 Wn. App. 932, 621 P.2d 201 (1980), review denied, 95 Wn.2d 1014 (1981):

No one can know whether the tort-feasors' combined negligence might have been found to be [40] percent or less ... or more than [40] percent. . . The settling tort-feasor [s] most likely wished to wash [their] hands clean of the whole affair. Involving the settling tort-feasor in *548the suit has been avoided.

DeMaris, at 945-46. The purported inequity pointed out by the majority is thus speculative at best.

In any event, it is our obligation to implement the intent of the Legislature. See Department of Transp. v. State Employees' Ins. Bd., 97 Wn.2d 454, 458, 645 P.2d 1076 (1982). In doing so, it is to be presumed that the Legislature intended a reasonable result. 2A C. Sands, Statutory Construction § 45.12 (4th ed. 1973).

The approach proposed by plaintiff is by far the most reasonable and is the only approach consistent with the limited scope of the trial. As noted above, the act requires that all allocation of fault at trial be among only those parties still remaining in the case. Logically, such fault apportionment figures should be applied to a correspondingly limited damages figure, i.e., only those damages attributable to the remaining parties. This limited damages figure is to be created by the deduction from total damages of the court approved settlement, since that settlement should approximate the damages attributable to the settling defendants (c/. Senate Journal, 47th Legislature (1981), at 636 (noting deduction of settlement amount was substituted for corresponding deduction of settling defendants' fault under Uniform Comparative Fault Act)). Thus this deduction is to take place before multiplying by the fault attributable to the plaintiff.

Lemos v. Eichel, 83 Cal. App. 3d 110, 147 Cal. Rptr. 603 (1978), cited by the majority, is distinguishable. Under the California law construed therein, the plaintiff's comparative fault was determined by the jury as a percentage of total fault. See Lemos, at 116. The reasoning just set forth, that limited fault comparisons should be applied only to correspondingly limited damage figures, was therefore inap-posite.

Neither are the committee report and comments of Senator Talmadge, cited by the majority, persuasive. The intent of individual legislators, especially intent expressed *549after passage of the legislation, cannot be used to establish the intent of the Legislature as a whole. See Woodson v. State, 95 Wn.2d 257, 623 P.2d 683 (1980). The committee report's statement that the "final judgment of the claimant is reduced" (italics mine) (Senate Journal, 47th Legislature (1981), at 636) is only slightly less vague than the corresponding statutory provision that "the claim ... is reduced" (italics mine) (RCW 4.22.060(2)).

Other legislative history supports plaintiff's position. For example, one witness at the hearings on the act, in discussing other aspects of the statute, put forth the following hypothetical:

If I could give you an example, it might clarify that. If you would assume that the jury would otherwise find that the plaintiff was 30% at fault, the deep-pocket defendant, defendant #1 10% at fault and the relatively insolvent defendant, defendant #2 would be left with the balance of 60%. Now if that party settles out — and let's assume the plaintiff's damages are $100,000 — if that party settles out for say $20,000 then as I read this statute, the plaintiff's claim then no longer is $100,000; it becomes $80,000. You reduce it by the amount of the settlement. You then must assume that the jury presumably will, when faced with only comparing defendant #1 with plaintiff, continue to compare them in roughly the same ratio that they did earlier, namely 30 to 10. And if asked to put it on a 100% scale, they would come up with 72-25.

Senate Select Committee on Tort Reform and Product Liability, 2 Hearing Transcripts, October 10, 1980, at 25 (testimony of Tom McLaughlin). This hypothetical appears to construe the act as advocated by plaintiff.

Plaintiff's position is also in accord with the controlling case law existing at the time the act was adopted. See DeMaris v. Brown, supra, in which the Court of Appeals so dealt with a situation identical to the present case. As the majority concedes, it is to be presumed that new legislation is consistent with prior case law. Glass v. Stahl Specialty Co., 97 Wn.2d 880, 887-88, 652 P.2d 948 (1982). Here, there is nothing in the legislative history to rebut this presump*550tion. While it is true that DeMaris was decided at a time when there was no right of contribution between joint tort-feasors, the majority gives no reason, and I perceive none, why a change in this area of the law should affect plaintiffs' recoveries. Indeed, in cases such as the present case, where there has been a court approved settlement, there is still no right of contribution, even under the new statute. See RCW 4.22.060(2).

In summary, the statutory framework of the comparative fault law strongly suggests that settlements should be deducted prior to reduction of damages for comparative fault. Moreover, such an approach is the most equitable available considering the necessarily limited scope of trial. In addition, it is at least as consistent with the confused legislative history as the approach of the majority. I must therefore dissent.

Williams, C.J., and Rosellini, J., concur with Utter, J.

Reconsideration denied January 11, 1984.