Several Liability and the Effect of Settlement on Claim Reduction: Further Thoughts

David K. DeWolf

Document Type

Article

Publication Title

Gonzaga Law Review

Abstract

Thomas R. Harris' recent articles have provided valuable commentary on two important facets of Washington's treatment of tort claims against joint tortfeasors. Washington's two attempts at reform legislation, the first in the product liability reform legislation of 1981 and the second in the Tort Reform Act of 1986, struggled with two distinct but related problems: (1) where the plaintiff is himself at fault, should he still be entitled to joint and several liability; and (2) where a plaintiff settles with one of two or more joint tortfeasors, how much should his claim against the remaining tortfeasors be reduced? In both areas the later legislation provided a different answer from the earlier: (1) as to the question of joint and several liability, the legislature initially left intact the judiciary's determination that the adoption of comparative negligence would not eliminate the plaintiff's right to joint and several liability. But in the 1986 legislation joint and several liability is retained only when the plaintiff is not at fault, or when other circumstances (e.g., concert among the defendants, or certain environmental violations) make it appropriate. (2) As to the question of the amount of claim reduction resulting from a settlement with one of two or more joint tortfeasors, the legislature again changed its mind: in the 1981 Act a settlement with one defendant reduced the plaintiff's claim against remaining defendants only by the amount actually received by the plaintiff. In the 1986 Act the legislature provided that the plaintiff's claim would be reduced by the percentage share of liability attributable to the settling parties. At first blush both changes may appear noncontroversial-indeed they may appear (as presumably they did to the legislature) to be significant improvements over the 1981 Act. However, each has significant drawbacks. In fact, both measures represent an overcorrection of perceived defects. In the case of joint and several liability, the earlier approach placed all of the burden of a defendant's insolvency upon the remaining defendants; by contrast, the newer legislation places all of the insolvency upon the plaintiff (unless he is free from fault or qualifies for the other exception to the rule of several liability). Similarly, in the case of claim reduction, the earlier approach could be faulted for providing the plaintiff too much of an incentive to settle, leaving remaining defendants "holding the bag." By contrast, the 1986 legislation makes partial settlement at best unattractive and at worst an invitation to malpractice. This article suggests that there is a happy medium in both cases. As to the question of joint and several liability, the Uniform Comparative Fault Act, promulgated in 1977,7 provides for a proportionate sharing of the risk of insolvency, so that plaintiffs and defendants "pay" for a defendant's insolvency according to their respective percentages of fault. In the area of claim reduction, the Commissioners have not been as successful, and it is to this question that the bulk of the article is addressed. After canvassing the three alternative formulations and noting the inadequacies of each, this article suggests a modification of the "pro tanto" or "dollar" reduction formula, so as to ensure that plaintiffs have adequate incentives both to settle and to settle fairly.

First Page

37

Last Page

76

Publication Date

1987

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