Arctic Structures, Inc. v. Wedmore

• Decision Date: 21 December 1979
• Docket Number: Nos. 3633,3654,s. 3633
• Citation: 605 P.2d 426
• Parties: ARCTIC STRUCTURES, INC., Glenn Sinclair and Brown & Root, Inc., Petitioners/Cross-respondents, v. Jack WEDMORE, Carol Wedmore, Home Insurance Company and Alaska Totem Electrical Enterprises, Inc., Respondents/Cross-petitioners.
• Court: Alaska Supreme Court

Page 426

605 P.2d 426

ARCTIC STRUCTURES, INC., Glenn Sinclair and Brown & Root Inc., Petitioners/Cross-respondents, v. Jack WEDMORE, Carol Wedmore, Home Insurance Company and Alaska Totem Electrical Enterprises, Inc. Respondents/Cross-petitioners.

Nos. 3633, 3654.

Supreme Court of Alaska.

Dec. 21, 1979.

Richard J. Smith, Bradbury & Bliss, Anchorage, for Arctic Structures and Glenn Sinclair.

John L. Orlandini, Murphy L. Clark, Anchorage, for Brown & Root, Inc.

Douglas J. Serdahely, Libbey & Serdahely, Anchorage, for Jack and Carol Wedmore.

Sanford M. Gibbs, Hagans, Smith, Brown, Erwin & Gibbs, Anchorage, for Alaska Totem Elec. Enterprises and Home Ins. Co.

OPINION

Before BOOCHEVER, C. J., RABINOWITZ, CONNOR, and BURKE, JJ., and ROWLAND, Superior Court Judge.

RABINOWITZ, Justice.

Jack Wedmore sustained personal injuries while working on the North Slope of Alaska on November 7, 1974. On that date, Wedmore was an employee of Alaska Totem Electrical Enterprises, Inc., the electrical sub-contractor employed on a construction project by the general contractor, Arctic Structures, Inc. Arctic Structures was employed in turn by B. P. Alaska, Inc., the project owner. Brown & Root, Inc. also was under contract with B. P. Alaska to provide project management services in the development of the North Slope, and Glenn Sinclair was a supervising employee of Arctic Structures.

Jack and Carol Wedmore, plaintiffs below, alleged that Jack Wedmore was injured by falling fifteen to twenty feet from a scaffolding or platform supported by the forks of a lift-truck at a Prudhoe Bay warehouse then under construction. The Wedmores further alleged that Brown & Root and B. P. Alaska were occupying the warehouse in a joint and common economic venture at the time; that the various defendants provided the scaffolding and safety inspections; that defendant Arctic Structures negligently failed to furnish a safe scaffolding platform; and that Brown & Root expressly warranted the safety of the scaffolding which was in fact dangerously defective such that injury resulted. Carol Wedmore alleged loss of consortium, both past and future.

Petitioners Arctic Structures and Glenn Sinclair, brought a petition for review asking this court to review two interlocutory orders issued by the superior court. The first order granted the motion of Jack and Carol Wedmore to strike an affirmative defense in the answer of Brown & Root which basically urged the abolition of the rule of joint and several liability in Alaska. ¹ In the second, the superior court denied Arctic Structure's motion for leave to amend its answer to assert affirmative defenses similar to those asserted by Brown & Root. ²

The first issue addressed in this opinion is whether the liability of multiple third-party defendants in an action by a plaintiff-employee who sustained on the job injuries to which both the plaintiff's employer and third-party defendants negligently contributed should be apportioned on the basis of fault or several liability. Petitioners appropriately concede that the present law with regard to joint and several liability in Alaska comports with the questioned orders of the superior court which struck Brown & Root's defense based on several liability and which denied Arctic Structures' motion to amend its answer to include the same defense. ^{3 3} Nevertheless, petitioners argue that the common law imposes no constraints on judicial adoption of the rule of several liability, particularly since the practical and moral bases for joint and several liability of concurrent tortfeasors have been eroded by this court's adoption of comparative negligence as the appropriate rule for apportioning damages in tort actions.

In Kaatz v. State, 540 P.2d 1037 (Alaska 1975), this court adopted the rule of comparative negligence. In so doing, we rejected arguments that fault cannot be measured on a scientific basis, that contributory negligence is a deterrent to careless conduct, that comparative negligence doctrine is difficult for courts to administer, and that settlement of negligence cases is encouraged by virtue of the existence of the contributory negligence rule. ⁴ In abandoning the rule of contributory negligence in favor of comparative negligence, this court was primarily concerned with the inequity of requiring an injured plaintiff to bear damages far in excess of his or her own measure of fault simply because the plaintiff was less than completely free of negligence. ⁵

Petitioners Arctic Structures and Glenn Sinclair argue that the comparative negligence rule adopted in Kaatz should be extended to the apportionment of damages between multiple defendants and they urge this court to limit the liability of each defendant in the case at bar proportionately to its degree of fault. In response to the original common law doctrine of joint and several liability and a marked judicial reluctance to permit contribution between tortfeasors even where independent but concurrent negligence contributed to a single injurious result, ⁶ numerous contributory negligence jurisdictions have passed statutes which, to a greater or lesser extent, allow contribution among tortfeasors. ⁷ Alaska is one of those states which has adopted a "Uniform Contribution Among Tortfeasors Act," AS 09.16.010-.060 which provides for pro rata contribution among tortfeasors found jointly or severally liable for the same injury to person or property. In light of the foregoing, the question thus presented to this court with respect to changing the existing common law rule of joint and several liability is whether a rule of several liability would contravene the intentions of the Alaska legislature in enacting the Contribution Among Tortfeasors Act.

The Alaska Uniform Contribution Among Tortfeasors Act was adopted at a time when contributory negligence and no right of contribution was the law in Alaska. ⁸ Section 09.16.010(a) of the Alaska act provides:

Right to contribution. (a) Except as otherwise provided in this chapter, where two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.

The statutory right of contribution is expressly limited to the pro rata share of the common liability and "(n)o tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability." ⁹ In determining the tortfeasors' pro rata shares, "their relative degrees of fault shall not be considered;" ¹⁰ however, "principles of equity applicable to contribution generally shall apply." ¹¹ The comments of the Commissioners on Uniform State Laws in regard to the Uniform Contribution Among Tortfeasors Act upon which the Alaska act is based indicate that a deliberate decision was made not to consider comparative negligence or degrees of fault in contribution cases. The comment to Uniform Contribution Among Tortfeasors Act § 2 (section 09.16.020(1) of the corresponding Alaska act) states that "the exclusion of intentional, willful and wanton actors from the right to contribution eliminates the better arguments for a relative degree of fault rule." ¹² Though the Judiciary Committee of the Alaska House of Representatives apparently disagreed with the Uniform Commissioners on this issue at one point, ¹³ the Alaska statute, as enacted, follows the exact language of the Uniform Act with respect to pro rata contribution. The principles of equity which apply through section 2(c) of the Uniform Act (section 09.16.020(3) of the corresponding Alaska statute) were intended to govern contribution when one defendant is found to be insolvent, and were not intended to affect the requirement that relative degrees of fault are not to be considered as a factor in the apportionment. ¹⁴

Despite the express language of the Alaska act requiring pro rata distribution of liability for damages among concurrent tortfeasors, petitioners contend that the underlying purpose of the act was the fair and equitable treatment of multiple defendants rather than pro rata sharing, and that the pro rata method was chosen because it was the only method of apportionment thought workable or judicially acceptable before comparative negligence had become accepted as a basis for apportioning damages. Petitioners therefore urge this court to adopt judicially the rule of several liability in recognition of the changed approach to liability for negligence brought about by Kaatz v. State, 540 P.2d 1037 (Alaska 1975), and to effect the legislative intent to achieve an equitable result even though the literal statutory language lends itself to the opposite outcome. ¹⁵

Petitioners further assert that apportioning liability based on fault can be reconciled with the provision of the Alaska Uniform Contribution Among Tortfeasors Act governing releases from liability. AS 09.16.040 provides:

Release or covenant not to sue. When a release or covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death,

(1) it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and

(2) it discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.

Petitioners focus on the "good faith" requirement in the release provision and argue:

Adequate recognition of All the purposes of the statute, in the greatly changed circumstances of comparative negligence commends that the court construe the good faith provision of AS 09.16.040 to require that the amount of reduction of the claim in...