DeMaris v. Brown
| Decision Date | 17 December 1980 |
| Docket Number | No. 7566-7-I,7566-7-I |
| Citation | 27 Wn.App. 932,621 P.2d 201 |
| Parties | Harry D. DeMARIS, individually and as Administrator of the Estate of Thomas I. DeMaris, deceased; and Kathryn D. DeMaris, his wife, Appellants, v. Sharon J. BROWN, as Personal Representative of the Estate of Curtis B. Clark, deceased; the Estate of Curtis B. Clark, Defendants, and the State of Washington, Respondent. |
| Court | Washington Court of Appeals |
Clinton, Fleck, Glein & Brown, Lawrence B. Linville, Seattle, for appellants.
Slade Gorton, Atty. Gen. of Wash., Donald L. Law, Asst. Atty. Gen., Olympia, for respondent.
The plaintiffs below, Kathryn DeMaris, acting individually, and Harry DeMaris, acting individually and as administrator of the estate of Thomas I. DeMaris, appeal from a judgment against the State of Washington in the amount of $0.00.
On June 10, 1975, Thomas I. DeMaris was killed while a passenger in an automobile driven by Curtis B. Clark. The plaintiffs commenced this suit on July 22, 1977, against the driver's estate based on the driver's alleged negligence, and against the State of Washington based on the State's alleged negligent design of the highway at the location of the accident.
Prior to trial, the plaintiffs settled with the driver's estate for $10,000. As a part of this settlement, the parties thereto entered into a settlement, release and indemnity agreement. The agreement provides in part as follows (T)he plaintiffs hereby acknowledge receipt from Hartford Insurance Group, insurer of Curtis B. Clark, of the sum of Ten Thousand Dollars ($10,000.00) this date, which sum the plaintiffs acknowledge to be in settlement of the disputed claim growing out of injury to and death of Thomas I. DeMaris, and the consequences flowing therefrom as a result of an accident, incident or casualty which occurred on the 10th day of June, 1975, for which injury, death and consequences flowing therefrom, the plaintiffs claimed the said Curtis B. Clark to be liable, which liability is expressly denied, and in sole consideration of the (sic) of the sum paid, the plaintiffs hereby release and forever discharge the said Curtis B. Clark, his heirs, successors, administrators and assigns and their insurer, Hartford Insurance Group, from any and all actions, causes of action, liability, claims and demands upon or by reason of any damage, loss, injury or death, arising out of the accident, incident or casualty in question.
Without limitation of the recitals contained above and as further consideration and inducement for this agreement the plaintiffs agree that it is full and final release of all claims against Curtis B. Clark for survival actions and the wrongful death of said Thomas I. DeMaris, including but not limited to the pain and suffering, if any, shortened life expectancy, loss of income and earning capacity sustained by him, and the loss of society, support, companionship, love and affection, and for injury to or destruction of parent-child relationship sustained by the plaintiffs as personal representative and parents or Thomas I. DeMaris, deceased, as well as funeral expenses and expense of last illness.
The parties mutually agree that Curtis B. Clark and the State of Washington were concurrent or successive tort feasors and were not joint tort feasors. The parties further agree that the plaintiffs do not intend to release the State of Washington from liability for the death of Thomas I. DeMaris; and the parties further agree that the release given by the plaintiffs to defendant Sharon J. Brown as personal representative of the estate of Curtis B. Clark, deceased, and the estate of Curtis B. Clark does not constitute a full satisfaction in damages for the death of Thomas I. DeMaris. The release given by the plaintiffs to the above-named defendant is neither intended to apply to the State of Washington nor may it be so construed. The parties agree, for the purposes of settlement and release, that the independent acts, or failure to act, of each of the defendants united to cause a single injury thus constituting Curtis B. Clark and the State of Washington as concurrent tort feasors.
The agreement is signed by Mr. and Mrs. DeMaris in their individual capacities and by Mr. DeMaris as personal representative of his son's estate.
The plaintiffs and the State of Washington thereafter went to trial. At the conclusion of the trial and insofar as damages are concerned, the trial court instructed the jury only on the issue of damages to the plaintiff estate measured by the decedent's lost earning capacity. The jury entered a special verdict that the plaintiff estate had sustained total damages of $50,000, and that the decedent was 85 percent contributorialy negligent. Following return of the verdict, the trial court arrived at its judgment by taking the plaintiff estate's total damages ($50,000) and multiplying that sum by the decedent's negligence (85 percent) to arrive at a figure of $7,500 against which it credited the amount of the pretrial settlement with the driver's estate ($10,000), thereby resulting in a net judgment of $0.00 against the State of Washington. The parties were denied costs.
The plaintiffs appeal, asserting that in a suit brought by injured parties against one of two concurrent tort-feasors it is error for the trial court to deduct the amount of the plaintiffs' pretrial settlement with a released tort-feasor from the plaintiffs' total damages attributable to the nonreleased tort-feasor's negligence. The plaintiffs assert that the amount of the plaintiffs' total damages should have been first diminished by the amount of the plaintiffs' pretrial settlement, and then the degree of negligence attributable to the nonreleased tort-feasor should have been applied against the difference to arrive at the amount of damages owed by the nonreleased tort-feasor.
The plaintiffs contend that the trial court erroneously deducted the $10,000 from the amount of damages attributable to the State's negligence rather than from the estate's total damages. They argue that where one co-defendant is released in a pretrial settlement, the amount of that pretrial settlement should be subtracted from the plaintiff's total damages rather than from the damages allocable to the nonreleased defendant against whom the jury returned a verdict. They rely on Elliott v. Kundahl, 89 Wash.2d 639, 574 P.2d 732 (1978). The plaintiffs assert that the trial judge should have diminished the amount of the plaintiff's claim against the State ($50,000) by the amount of the plaintiff's pretrial settlement with the driver's estate ($10,000), applied the degree of negligence attributable by the jury to the State (15 percent) against the difference ($40,000), and then entered judgment against the State in the amount of $6,000, citing Pierringer v. Hoger, 21 Wis.2d 182, 124 N.W.2d 106, 111 (1963), and American Motorcycle Ass'n v. Superior Court, 20 Cal.3d 578, 578 P.2d 899, 146 Cal.Rptr. 182 (1978).
The record presented consists solely of the clerk's papers. Among other things, the clerk's papers include the plaintiffs' complaint, their pretrial release, the court's instructions and judgment, and a brief of the plaintiffs that contains the same contention and argument set forth except that now the plaintiffs speak of the "plaintiff's" claim and damages rather than the "plaintiffs' " claim and damages as they did at trial. The prayer for damages in the plaintiffs' complaint potentially encompasses damages under the wrongful death statutes, RCW 4.20.010, RCW 4.20.020, and RCW 4.24.010, and the survival statutes, RCW 4.20.046 and RCW 4.20.060, because the complaint is brought by the DeMarises in their own right and by Mr. DeMaris as personal representative for his son's estate. We do not know if Thomas DeMaris was a minor. The plaintiffs' release with the driver's estate includes any claim based on the wrongful death and survival statutes. The sole damage issue presented to the jury was the pecuniary loss to the estate, a measure of damages authorized under RCW 4.20.046 for the benefit of the estate as opposed to the decedent's heirs or next of kin, Hinzman v. Palmanteer, 81 Wash.2d 327, 501 P.2d 1228 (1972). The jury was not instructed to and did not determine what, if any, damages Mr. and Mrs. DeMaris might be entitled to in their individual capacities under RCW 4.24.010. Nevertheless, when the issue of deducting the pretrial settlement from the jury's verdict arose, the plaintiffs treated the jury's verdict as the "plaintiffs' " damages and objected to the court's judgment only by arguing that the pretrial settlement should be first deducted from the "plaintiffs' " gross claim of $50,000 against the State. The issue is framed in accordance with the arguments presented to the trial court. See, e. g., Transamerica Ins. Group v. United Pac. Ins. Co., 92 Wash.2d 21, 593 P.2d 156 (1979); Magerstaedt v. Eric Co., 64 Wash.2d 298, 391 P.2d 533 (1964); Ross v. Hagen, 51 Wash.2d 165, 316 P.2d 896 (1957); Sweeney v. Pacific Coast Elevator Co., 14 Wash. 562, 45 P. 151 (1896).
We turn to a discussion of the distinction between joint and concurrent tort-feasors, and the rules applicable to releases and covenants not to sue. Joint tort-feasors must act in concert in committing the wrong, or their acts, if independent of each other, must breach a joint duty and unite in causing a single injury. Seattle-First Nat'l Bank v. Shoreline Concrete Co., 91 Wash.2d 230, 235, 588 P.2d 1308 (1978); Young v. Dille, 127 Wash. 398, 404, 220 P. 782 (1923). If two or more individuals commit independent acts of negligence that concurrently produce the proximate cause of a third party's injury, they are regarded as concurrent tort-feasors. Mason v. Bitton, 85 Wash.2d 321, 534 P.2d 1360 (1975). Thus, concurrent tort-feasors breach separate duties while joint tort-feasors breach a joint duty. Seattle-First Nat'l Bank v. Shoreline Concrete Co., supra, ...
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