Church v. Rawson Drug & Sundry Co.
| Decision Date | 01 October 1992 |
| Docket Number | No. 1,CA-CV,1 |
| Citation | 842 P.2d 1355,173 Ariz. 342 |
| Parties | Laura CHURCH, Plaintiff-Appellant, v. RAWSON DRUG & SUNDRY COMPANY, a California corporation, Defendant-Appellee. 90-0357. |
| Court | Arizona Court of Appeals |
In this case, we hold that the statute which abolishes the doctrine of joint and several liability is constitutional. Accordingly, we affirm the judgment entered in the trial court.
The case arises out of an injury which Laura Church suffered while she was working for ABCO Markets, Inc. She was unloading containers of merchandise that had been received from Rawson Drug and Sundry Company when the containers fell on her. She received workers' compensation benefits from ABCO, and she and her husband brought a negligence action against Rawson, alleging that Rawson had stacked the containers on pallets in a careless manner. The husband's case was dismissed and is not a part of this appeal.
Before trial, the plaintiff filed a motion in limine to preclude the mention at trial of any negligence on the part of ABCO. She anticipated that Rawson would argue that ABCO was negligent in ignoring complaints about the weight of the containers and how they were stacked and that pursuant to Ariz.Rev.Stat.Ann. ("A.R.S.") § 12-2506, which allows the jury to apportion fault among those who caused the injury, part of the fault should be allocated to ABCO. She argued that if the finder of fact allocated a percentage of fault to ABCO, the amount of money she would ultimately receive would be reduced because ABCO, as her employer, is immune from suit under the workers' compensation law. The trial court denied the motion.
At trial, the jury found in favor of the plaintiff and set her damages at $52,625.50. The jury allocated fault equally between the plaintiff, Rawson, and ABCO. Thus, the total amount the plaintiff will recover is one third of $52,625.50, which is $17,541.83.
The plaintiff appeals from the judgment and argues that A.R.S. § 12-2506, the statute abolishing joint and several liability:
(1) violates the nonabrogation of damages provision found in article 18, § 6 of the Arizona Constitution;
(2) violates the nonlimitation of damages provision found in article 2, § 31 of the Arizona Constitution;
(3) violates the guarantee of equal privileges and immunities found in article 2, § 13 of the Arizona Constitution;
(4) violates due process of law guaranteed by article 2, § 4 of the Arizona Constitution; and
(5) violates the separation of powers guaranteed by article 3 of the Arizona Constitution.
The full text of the statute which deals with this topic is set forth in the appendix to this opinion. Arizona Revised Statutes Annotated § 12-2506 was adopted in 1987 and applies to causes of action filed after January 1, 1988. Before that date, damages in actions for personal injury, property damage and wrongful death were indivisible, and each defendant was liable for the entire judgment, regardless of a particular defendant's degree of fault. Since 1988, each defendant is liable "only for the amount of damages allocated to that defendant in direct proportion to that defendant's percentage of fault." A.R.S. § 12-2506(A). Joint and several liability still applies when two parties to an action are acting in concert, when one party is an agent of another party, or when a cause of action relates to hazardous wastes or substances. A.R.S. § 12-2506(D). In allocating fault, the trier of fact must consider the fault of any person who contributed to the injury, regardless of whether that person is or could have been a party to the action. A.R.S. § 12-2506(B). However, the assessment of fault against a nonparty will not subject that nonparty to liability in the case then before the court or in any other action. Id.
The plaintiff argues that the statute abolishing joint and several liability offends the provision of the Arizona Constitution prohibiting the abrogation of the right to bring an action for damages. Article 18, § 6 of the constitution, the nonabrogation clause, provides:
The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.
The parties and amici curiae raise several distinct arguments relating to the application of this constitutional provision.
Amicus curiae Phoenix Association of Defense Counsel and amicus curiae Arizona Hospital Association both contend that article 18, § 6 of the Arizona Constitution only limits the right of the legislature to affect the common law as the common law existed at the time of the adoption of the constitution in 1912. From this premise, they go on to argue that the doctrine of joint and several liability, in cases where the actions of several tortfeasors who were not acting in concert contributed to an indivisible injury, was first recognized in Arizona in 1966 when our supreme court decided the case of Holtz v. Holder, 101 Ariz. 247, 418 P.2d 584 (1966). It follows, they say, that the nonabrogation clause does not apply to the case now before us.
In recent years, our supreme court has addressed the question whether the nonabrogation clause protects causes of action that came into being after the adoption of our constitution on three occasions. Twice it has decided that the nonabrogation clause protects such causes of action. See Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 17-18, 730 P.2d 186, 194-95 (1986), cert. denied, 481 U.S. 1029, 107 S.Ct. 1954, 95 L.Ed.2d 527 (1987); Humana Hospital v. Superior Court, 154 Ariz. 396, 742 P.2d 1382 (App.1987). More recently, in a split decision, it reached a different conclusion in Bryant v. Continental Conveyor & Equip. Co., 156 Ariz. 193, 751 P.2d 509 (1988). Since the composition of the court changed between the time that Humana Hospital and Bryant were decided, and has changed again since Bryant, this question may still be an open one. We need not turn our decision on this point. Even if we assume that the nonabrogation clause protects causes of action that came into being after the adoption of our constitution, and even if we assume that the kind of joint and several liability that concerns us here was first established by Holtz v. Holder, the statute abrogating joint and several liability is nonetheless constitutional.
A party to an action does not have a vested right in a particular remedy or mode of procedure. See Town of Chino Valley v. State Land Dept., 119 Ariz. 243, 580 P.2d 704 (1978). However, "[the legislature] may not, under the guise of 'regulation,' so affect the fundamental right to sue for damages as to effectively deprive the claimant of the ability to bring the action." Barrio v. San Manuel Division Hospital for Magma Copper Co., 143 Ariz. 101, 106, 692 P.2d 280, 285 (1984) ().
The defendants, citing language in Barrio and other cases, take the position that before the abrogation clause is implicated, the right to bring an action must be completely abolished. The plaintiff takes a much broader view. She relies heavily on the case of Boswell for, as she characterizes it, the proposition that article 18, § 6 is a substantive constitutional guarantee of the right to obtain full redress for injuries--a guarantee the statute has nullified.
The plaintiff reads Boswell too expansively. That case dealt with a retraction statute that changed the common law of defamation. The statute provided that a media defendant who retracted the defamatory statement was only liable for damages done to a plaintiff's property, business, trade, profession or occupation, and not for damages for loss of reputation or for emotional distress unless the plaintiff could prove that the defamation was published with actual malice. The defendant newspaper had carried a story which mistakenly accused the plaintiffs of committing a crime. The trial court instructed the jury that the plaintiffs could only recover for damage to their property, business, trade, profession or occupation. It did not instruct as to damages for loss or reputation or emotional distress.
After dealing with a number of arguments that do not concern us here, the court proceeded to address whether the statute was a permissible regulation of a right of action. It said:
We differentiate between abrogation and regulation by determining whether a purported legislative regulation leaves those claiming injury a reasonable possibility of obtaining legal redress.
Boswell, 152 Ariz. at 18, 730 P.2d at 195. It observed that the retraction statute would prevent many defamed people from recovering damages for injury to reputation or emotional suffering because it...
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