Gerrard v. Craig
| Citation | 122 Wn.2d 288,857 P.2d 1033 |
| Decision Date | 09 September 1993 |
| Docket Number | No. 59800-2,59800-2 |
| Court | United States State Supreme Court of Washington |
| Parties | Sherry GERRARD, Plaintiff, v. Jack CRAIG and Immaculate Lupis, Respondents, and Edward M. Lawson, Petitioner. En Banc |
Petersen, Lycette & Snook, P.S., Keith A. Bolton, Seattle, for respondent.
Bryan P. Harnetiaux, Gary N. Bloom, Spokane, amicus curiae for petitioner on behalf of Washington State Trial Lawyers Ass'n.
Donald C. Harrison, Seattle, amicus curiae for respondents on Behalf of Washington Defense Trial Lawyers.
This case arises out of an October 26, 1985, chain collision involving four automobiles at the intersection of North 103rd Street and Aurora Avenue North in Seattle. Ms. Sherry Gerrard was a passenger in the second of two automobiles then stopped at a traffic signal. She sustained physical injuries when a third automobile driven by Respondent Immaculate J. Lupis, and owned by Respondent Jack Craig, "rear-ended" the second vehicle which then struck the first automobile driven by Scott Vernon Wayne, Jr., who is not a party to this proceeding. According to the police traffic collision report, Ms. Lupis saw the two vehicles stopped at the intersection, but "the car wouldn't stop." 2 Shortly after the first collision, a fourth vehicle driven and owned by Petitioner Edward M. Lawson struck the third vehicle, driven by Ms. Lupis, aggravating its impact with the second one in which Ms. Gerrard was a passenger. Mr. Lawson indicated to the investigating officer that he realized a collision was imminent, "but was unable to stop in time." 3 Ms. Gerrard played no part in causing the collisions.
On October 11, 1988, Ms. Gerrard filed in the King County Superior Court a personal injury action against the drivers of the third and fourth automobiles, Ms. Lupis (and Mr. Craig, owner) and Mr. Lawson. On October 25, 1989, Mr. Craig and Ms. Lupis filed a crossclaim for contribution against Petitioner Lawson. He answered with an affirmative defense of insufficiency of process.
On August 29, 1989, Petitioner Lawson moved for summary judgment against Ms. Gerrard, Mr. Craig and Ms. Lupis. He asserted that Ms. Gerrard did not properly serve The motion for summary judgment was contested by Ms. Gerrard, but Respondent Craig and Respondent Lupis neither responded to it nor appeared at the hearing on the motion. On September 20, 1989, the court, the Honorable Edward Heavey, granted Petitioner Lawson's summary judgment motion with prejudice. Ms. Gerrard and Respondent Craig and Respondent Lupis then proceeded to arbitration on Ms. Gerrard's claim against them. On June 27, 1990, an arbitrator entered an award of $28,939.91 in favor of Ms. Gerrard.
him, with the result that the trial court did not acquire jurisdiction over him. Further, he claimed that the statute of limitations had run on Ms. Gerrard's claim. He asked for dismissal of all claims against him
Respondents Craig and Lupis then requested a trial in superior court on the arbitration award. On August 16, 1990, they moved for reconsideration of the September 20, 1989, summary judgment dismissal of their crosscomplaint for contribution against Petitioner Lawson. On September 4, 1990, the court, the Honorable Edward Heavey, denied the motion. Ms. Gerrard and Respondents Craig and Lupis later reached a settlement for $18,923. On November 5, 1990, the court entered a stipulated judgment incorporating the settlement:
IT IS STIPULATED by and between plaintiff Sherry Gerrard and defendants Jack Craig and Jane Doe Craig, his wife, and Immaculate J. Lupis, that plaintiff is entitled to judgment against said defendants in the sum of $18,923, including all costs. 4
On November 30, 1990, Respondents Craig and Lupis filed a notice of appeal to the Court of Appeals on dismissal of their crossclaim and denial of their motion to set aside that dismissal. The Court of Appeals, Division One, the Honorable Faye C. Kennedy writing, reversed and remanded for determination of the contribution claim. 5 On February 3, 1993, this court granted review.
This case presents the question whether, under RCW 4.22.070, in the case of a chain collision involving four automobiles, one tortfeasor may seek contribution from another tortfeasor who has obtained dismissal of the plaintiff's tort claim on summary judgment.
RCW 4.22.030 provides that "[e]xcept as otherwise provided in RCW 4.22.070, if more than one person is liable to a claimant on an indivisible claim for the same injury, death or harm, the liability of such persons shall be joint and several ". 6
RCW 4.22.070 establishes several liability as the rule in cases involving multiple tortfeasors, but identifies exceptions to the rule, one of which, contained in former subsection (1)(b), is applicable to this case:
(1) In all actions involving fault of more than one entity, the trier of fact shall determine the percentage of the total fault which is attributable to every entity which caused the claimant's damages, including the claimant ..., defendants, third-party defendants, entities released by the claimant, entities immune from liability to the claimant and entities with any other individual defense against the claimant. Judgment shall be entered against each defendant except those who have been released by the claimant or are immune from liability to the claimant or have prevailed on any other individual defense against the claimant in an amount which represents that party's proportionate share of the claimant's total damages. The liability of each defendant shall be several only and shall not be joint except:
....
(b) If the trier of fact determines that the claimant ... was not at fault, the defendants against whom judgment is entered shall be jointly and severally liable for the sum of their proportionate shares of the claimant[']s total damages.
(2) If a defendant is jointly and severally liable under ... [subsection] (1)(b) of this section, such defendant's rights to contribution against another jointly and severally liable defendant, and the effect of settlement by either such defendant, shall be determined under RCW 4.22.040, 4.22.050, and 4.22.060.
(Italics ours.)
After determining that Appellants [respondents here] Craig and Lupis had not waived their right to appeal, 7 the Court of Appeals concluded that the trial court erred in granting summary judgment dismissal of the claim for contribution and in denying a motion to reconsider the dismissal. Citing New Meadows Holding Co. v. Washington Water Power Co., 8 the court concluded that appellants [respondents here] Craig and Lupis had not waived their right to maintain an action for contribution by failing to contest respondent [petitioner here] Lawson's motion for summary judgment. 9
In determining the merits of respondents' claim for contribution, the Court of Appeals referred to RCW 4.22.070. The court reasoned that subsection (1) of the statute applies only when the trier of fact has before it evidence sufficient to enable it to make a determination of fault among all parties who caused a plaintiff's injuries, stating that "fault cannot be determined independently from the determination of causation...." 10 The court reasoned further that where sufficient evidence exists for such determinations, several liability applies. The court noted that in creating the several liability rule, the Legislature recognized in subsection (1)(a) three common law exceptions for tortfeasors: (1) when they are principal and agent, (2) when they are master and servant or (3) when they act in concert.
The Court of Appeals then examined chain automobile collisions and reasoned that because such collisions preclude the Legislature intended, for purposes of the typical chain collision situation, (1) to empower triers of fact to make arbitrary determinations based on no factual evidence, or insufficient factual evidence, in apportioning fault; or (2) to retain an additional recognized common law exception, i.e., to retain joint and several liability where there is insufficient factual evidence upon which to base a determination of the percentage of total fault attributable to each entity which caused the claimant's damages. 11
the finder of fact from determining causation in fact, there was no basis for assigning proportionate fault. Consequently, the court reasoned that it had to decide whether
After considering whether an injury resulting from a chain collision automobile accident qualifies as indivisible, the Court of Appeals rejected the first option as "abhorrent and absurd...." 12 It concluded that the Legislature must have intended to retain under RCW 4.22.070(1)(b) a common law joint and several liability exception "in cases where there is insufficient factual evidence upon which a trier of fact could rationally determine the percentage of the total fault which is attributable to two or more tortfeasors." 13
The Court of Appeals then concluded that the record did not provide a sufficient basis for it to decide whether the intended joint and several liability common law exception applied to the circumstances in this case. It reasoned that only a remand to the trier of fact could answer that question. The court adopted the holding in Smith v. Jackson 14 that a joint tortfeasor may pursue a claim for contribution ...
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