Burton v. Gardner Motors, Inc.

• Citation: 172 Cal.Rptr. 647,117 Cal.App.3d 426
• Court: California Court of Appeals
• Decision Date: 27 March 1981
• Parties: Carol Ann BURTON, Plaintiff and Appellant, v. GARDNER MOTORS, INC., Defendant and Respondent. Civ. 4476.

Page 647

172 Cal.Rptr. 647

117 Cal.App.3d 426

Carol Ann BURTON, Plaintiff and Appellant, v. GARDNER MOTORS, INC., Defendant and Respondent.

Civ. 4476.

Court of Appeal, Fifth District, California.

March 27, 1981.

Theodore L. Slinkard and Melvin K. Rube, Fresno, for plaintiff and appellant

McCormick, Barstow, Sheppard, Coyle & Wayte, Fresno, for defendant and respondent.

OPINION

GEO. A. BROWN, Presiding Justice.

In this personal injury action plaintiff, Carol Ann Burton, appeals from a summary judgment in favor of the defendant, Gardner Motors, Inc. (hereinafter Gardner).

Plaintiff was injured as a result of a collision between an automobile she was driving and an Audi driven by Michael Higginbotham, in which Tenna Chrismer was riding as a passenger. The Audi had been loaned by Gardner to Chrismer for her use while her car was being repaired. In this action for negligently caused injuries, plaintiff sued Higginbotham, Chrismer and Gardner. The complaint alleges several theories of liability against Gardner, including allegations that Gardner was the owner of the car and that it was being negligently operated by Chrismer and Higginbotham with Gardner's permission and consent. Ownership and permission and consent are admitted. Chrismer and Gardner were served with the summons and complaint, but Higginbotham was not.

Chrismer made an offer of compromise in the sum of $8,500 pursuant to Code of Civil Procedure section 998 ¹ which was accepted by the plaintiff, and judgment in that sum against Chrismer followed. The judgment was satisfied, and satisfaction of judgment was filed and entered.

Thereafter plaintiff pursued the action against Gardner. Gardner moved for summary judgment on the ground that the satisfaction of judgment against Chrismer precluded pursuing the action against Gardner. ² The motion was granted and a summary judgment was entered, from which plaintiff has appealed.

Since the critical facts are not in dispute, the summary judgment motion raises legal issues only.

The seminal section establishing liability of owners for the negligent operation of a motor vehicle by persons driving with the owner's permission and consent is Vehicle Code section 17150. It provides:

"Every owner of a motor vehicle is liable and responsible for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner."

The legislative intent in enacting the statute imposing vicarious liability upon owners was to protect innocent third parties from careless use of automobiles in situations where it is impossible to collect damages from the negligent operator. (Peterson v. Grieger, Inc. (1961) 57 Cal.2d 43, 53-56, 17 Cal.Rptr. 828, 367 P.2d 420; Southern Pac. Transportation Co. v. Dolan (1972) 27 Cal.App.3d 534, 537-542, 104 Cal.Rptr. 131.) The legislative committee comment to section 17150 explains in pertinent part: "Of course, liability based solely on vehicle ownership and not arising out of a master servant relationship is only a secondary liability that is expressly limited in dollar amount." (Legis. committee com., 66A West's Ann. Veh. Code (1971 ed.) § 17150, p. 110.)

The legislative scheme under the Vehicle Code, commencing with section 17150, is explained in Kemp v. Barnett (1976) 62 Cal.App.3d 245, 248-249, 132 Cal.Rptr. 823:

"A suit may be brought against an owner separately, but the intention of the Legislature, as evidenced by Vehicle Code sections 17152 and 17153, is to encourage joinder of owner and operator in a single suit where possible and to subrogate the owner to the claim of the injured party for any damages recovered from the owner. Under strict joint tortfeasor rules, every tortfeasor is liable for the entire damages; if partial satisfaction of a judgment is received from one, the liability of others is reduced correspondingly. (Carr v. Cove (1973) 33 Cal.App.3d 851 (109 Cal.Rptr. 449); Code Civ. Proc., § 875.) In an action against a motorist responsible for the negligent operation of a vehicle and against the automobile owner, there is one verdict for a single sum against all defendants jointly liable. However, the owner's liability is limited by statute and is not in addition to recovery against the operator. (Veh. Code, § 17151; Harbor Ins. Co. v. Paulson (1955) 135 Cal.App.2d 22 (286 P.2d 870); Heves v. Kershaw, supra.)

"The negligent operator is subject to unlimited liability for his own tort. Recourse must first be had against him if possible and the owner who pays is subrogated to the injured party's rights against the operator. (Veh. Code, § 17153.)"

The current limit of liability imposed upon the owner under this statute is $15,000 for injury to one person (see Veh. Code, § 17151, subd. (a)).

The owner and operator of a vehicle are considered joint tortfeasors and are jointly and severally liable for the same damages up to the limit specified in the statute for the owner's liability. (Kemp v. Barnett, supra, 62 Cal.App.3d 245, 248, 132 Cal.Rptr. 823; Dow v. Britt (1974) 37 Cal.App.3d 868, 873, 112 Cal.Rptr. 710; Heves v. Kershaw (1961) 198 Cal.App.2d 340, 344-345, 17 Cal.Rptr. 837.) Since there can be only one satisfaction for any injury (Kemp v. Barnett, supra, at p. 248, 132 Cal.Rptr. 823), a full satisfaction of judgment against one joint tortfeasor extinguishes the obligation and discharges the liability to the injured party of the others. (Winzler & Kelly v. Superior Court (1975) 48 Cal.App.3d 385, 391-392, 394, 122 Cal.Rptr. 259; Savage v. Emery (1967) 255 Cal.App.2d 603, 605-606, 63 Cal.Rptr. 566; Watson v. McEwen (1964) 225 Cal.App.2d 771, 774, 37 Cal.Rptr. 677; 4 Witkin, Summary of Cal. Law (8th ed. 1974) § 37, p. 2335.)

The rule applies "... where no judgment has been obtained against the other tortfeasors ..." and "(t)he rule applies where the tort was the act of one of them for which the others were liable .... It is immaterial whether the one paying was, with reference to one who has not paid, primarily or secondarily liable." (Watson v. McEwen, supra, 225 Cal.App.2d 771, 775, 37 Cal.Rptr. 677.)

For example, in Savage v. Emery, supra, the defendant parent had signed the application for his minor daughter's driver's license. There was an automobile accident while the minor daughter was driving a separate owner's car. The injured plaintiff sued the owner and the minor driver and collected full satisfaction of a judgment for $4,000. Plaintiff then sued the parents based upon the fact that the father had signed the minor's driver's license. (Veh. Code, § 17707.) ³ The court held the satisfaction of the judgment in the first action acted as a bar in the action against the father on a theory that all joint tortfeasors were discharged by payment of the judgment by one joint tortfeasor. This was true even though the statutory maximum liability of the discharged tortfeasor is greater than the amount of the satisfied judgment.

In this regard it is also to be noted that the judgment by stipulation has the same effect as a judgment after a trial. (Avery v. Avery (1970) 10 Cal.App.3d 525, 529, 89 Cal.Rptr. 195; Nielsen v. Emerson (1931) 119 Cal.App. 214, 218, 6 P.2d 281; Rogers v. Springfield Fire etc. Ins. Co. (1928) 92 Cal.App. 537, 541, 268 P. 679; see also Gregory v. Hamilton (1978) 77 Cal.App.3d 213, 221, 142 Cal.Rptr. 563.)

Accordingly, since Chrismer and Gardner were joint tortfeasors and plaintiff has accepted the sum of $8,500 in full satisfaction of the judgment against the driver, Gardner is discharged from further responsibility to the plaintiff.

To counter this result appellant cites and relies upon Kemp v. Barnett, supra, 62 Cal.App.3d 245, 132 Cal.Rptr. 823. In Kemp the plaintiff sued both the owner and driver and both were before the court. The owner stipulated to judgment of $1,500 in favor of the plaintiff and against the owner and satisfied the judgment. The driver moved for summary judgment on the ground the satisfaction of the judgment discharged the driver. The court, after discussing the joint tortfeasor rules and acknowledging they would normally require that result, held that in view of the limited statutory liability of the owner and the unlimited liability of the driver, the driver was discharged only to the extent of the payment made.

Obviously, the Kemp case is exactly the opposite of the case now before us. It seems clear that the rule of Kemp does not apply where the payment is made by the driver and the owner's liability is fixed, first, by the amount of the driver's liability and, second, by a statutory maximum. (See Royal Indemnity Co. v. Olmstead (9th Cir. 1951) 193 F.2d 451.)

The result we reach is equitable and fair to the parties and comports with the statutory scheme and purpose. The statute requires the permittee to "... be made a party defendant if service of process can be made in a manner sufficient to secure personal jurisdiction over the operator. Upon recovery of judgment, recourse shall first be had against the property of the operator so served." (Veh. Code, § 17152.)

Vehicle Code section 17153 accords to the owner the right of subrogation to all the rights of the person injured against the permittee.

Should we hold that the plaintiff herein could further pursue her claim against Gardner, Gardner's right of subrogation to the rights of the plaintiff against Chrismer would be effectively obliterated by the satisfaction of judgment entered by the plaintiff against the permittee, Chrismer. A stipulated judgment followed by a satisfaction would be an effective bar against further recovery against Chrismer. (See Rogers v. Springfield Fire etc. Ins. Co., supra, 92 Cal.App. 537, 268 P. 679; Nielsen v Emerson, supra, 119 Cal.App. 214, 6 P.2d 281. ⁴

Appellant also suggests that Code of Civil Procedure section 875,...