Kottler v. State, s. 65256-2
| Decision Date | 24 September 1998 |
| Docket Number | 65515-4,Nos. 65256-2,s. 65256-2 |
| Citation | 963 P.2d 834,136 Wn.2d 437 |
| Court | Washington Supreme Court |
| Parties | Herbert R. KOTTLER, a resident of Clallam County; and Olympic Rentals, Inc., a corporation, Appellants, v. STATE of Washington, Respondent. Daniel R. WETHERINGTON, d/b/a American Stage Lines, and Donna Cox, a single woman, Appellants, v. WEYERHAEUSER COMPANY, a Washington corporation; The State of Washington and The Department of Natural Resources, a Division of the State of Washington; The Washington State Society of The Society of American Foresters, an unincorporated fraternal association; and the Society of American Foresters, a foreign corporation, Respondents. |
Reed, McClure, William Hickman, Lisa Kirk, Seattle, Gierke, Curwen, Metzler & Erie, Leigh D. Erie, Gregory Curwen, Tacoma, Thomas Merrill, Milton, for Appellants.
Christine Gregoire, Attorney General, Rene Tomisser, Michael Lynch, Glen Anderson, Assistant Attorney Generals, Olympia Brown, Lewis, Janhunen & Spencer, Douglas Lewis, Montesano, Hillis, Clark, Martin & Peterson, Mark Clark, Lynne M. Cohee, Lane, Powell, Spears & Lubersky, Charles Huber, Seattle, for Respondents.
We are asked whether a settling party in a civil tort action is entitled to contribution from another alleged tortfeasor based upon a pretrial settlement with a fault-free injured party. We hold such settling party may not seek contribution unless joint and several liability arises under one of the exceptions listed in RCW 4.22.070 and conclude joint and several liability will not arise under RCW 4.22.070(1)(b) unless a judgment is entered.
This proceeding consolidates two separate actions. In the first, Kottler v. State, No. 65256-2, Herbert Kottler drove a van owned by his employer, Olympic Rentals, Inc., off the roadway in a single-car accident. Louis Steiner, his passenger, was seriously injured and sued Kottler and Olympic Rentals 1 for his injuries. The State was never named in that suit. Prior to trial Kottler settled with Steiner and obtained a full release. 2 Kottler then brought a separate contribution suit under RCW 4.22.040 against the State, alleging the State's negligence 3 was a cause of the Kottler accident and claiming the State should therefore bear proportionate liability for the damages paid by Kottler in settlement.
In the second case, Wetherington v. Weyerhaeuser, No. 65515-4, a tour bus filled with timber conference participants veered off the roadway, and rolled down the hillside. This American Stage Lines (ASL) bus was chartered to tour participants of a timber conference hosted by the Washington State Society of the Society of American Foresters and the Society of Foresters (Society of Foresters) to view logging sites in the Capitol State Forest. As the bus driver attempted to pass a car on the outside edge of a curve on a one-lane dirt logging road, the bus drove off the road and rolled down the hillside to the creek below, injuring 45 passengers and killing one.
The record does not indicate whether the injured riders brought suit in court against ASL or anyone else; however, we know ASL settled in full with 41 of the injured passengers and that the settlement agreement released ASL and all other potential defendants from claims of liability.
However, after settlement ASL through its president, Daniel Wetherington, brought suit for contribution under RCW 4.22.040 against the State and Department of Natural Resources (State), the Society of Foresters, and the Weyerhaeuser Company, asserting each shared in the fault which caused the bus accident and claiming each should bear a portion of the liability. ASL asserts the State was at fault for maintaining a substandard logging road while the Society of Foresters and Weyerhaeuser were at fault for setting the tour route and directing the bus onto the allegedly substandard logging road.
In both cases the defendants moved for summary judgment dismissal of the contribution actions under CR 12(b)(6) and CR 56, arguing there was no joint and several liability and thus no right to contribution. The trial courts agreed and dismissed the contribution actions. We granted direct review and affirm.
Kottler and ASL claim the right of contribution. Contribution in tort is the right of one who has paid a common liability to recover a portion of the payment from another tortfeasor who shares in that common liability. Black's Law Dictionary 328 (6th ed.1990). At common law there was no right to contribution among tortfeasors, and a tortfeasor who paid an entire liability could not seek contribution from another tortfeasor even where that other tortfeasor paid nothing to the injured party yet was jointly and severally liable for the entire harm. Washburn v. Beatt Equip. Co., 120 Wash.2d 246, 292, 840 P.2d 860 (1992); Wenatchee Wenoka Growers Ass'n v. Krack Corp., 89 Wash.2d 847, 850, 576 P.2d 388 (1978). The rule against contribution was premised in part on notions of "indivisibility of harm" and the conceptual difficulties of allocating fault. Washington followed the common-law rule against contribution until 1981 when the Legislature created a statutory right to tort contribution. Laws of 1981, ch. 27, §§ 12-14 (codified at RCW 4.22.040-.060). 4
The 1981 contribution statute provides:
A right of contribution exists between or among two or more persons who are jointly and severally liable upon the same indivisible claim for the same injury, death or harm, whether or not judgment has been recovered against all or any of them. It may be enforced either in the original action or by a separate action brought for that purpose. The basis for contribution among liable persons is the comparative fault of each such person....
RCW 4.22.040(1) (emphasis added.)
Thus the contribution statute specifically limits the right to contribution to parties "jointly and severally liable" for the underlying claim. RCW 4.22.040. Contribution is conditioned on the existence of joint and several liability because absent such common joint and several liability one party will have no duty to pay another's liability for damages and, thus, no cause for subsequent reimbursement. Since the adoption of the contribution statute we have, without exception, affirmed that joint and several liability is a prerequisite to a right to seek contribution. See, e.g., Glass v. Stahl Specialty Co., 97 Wash.2d 880, 887, 652 P.2d 948 (1982) (); Elovich v. Nationwide Ins. Co., 104 Wash.2d 543, 554, 707 P.2d 1319 (1985) (); Washburn, 120 Wash.2d at 292, 840 P.2d 860 (); Gerrard v. Craig, 122 Wash.2d 288, 298, 857 P.2d 1033 (1993) ().
The State, the Society of Foresters, and Weyerhaeuser assert there is no joint and several liability here and therefore no right to contribution. Thus we turn to the law of joint and several liability.
Under the common law, joint and several liability arose whenever more than one tortfeasor caused a plaintiff indivisible injury. In such cases the injured plaintiff could seek full compensation from any tortfeasor. See Abb v. Northern Pac. Ry. Co., 28 Wash. 428, 431, 68 P. 954 (1902); Seattle First Nat'l Bank v. Shoreline Concrete Co., 91 Wash.2d 230, 236, 588 P.2d 1308 (1978). This rule of joint and several liability was enshrined in RCW 4.22.030, which, prior to the 1986 Tort Reform Act, provided, "[i]f 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." Laws of 1981, ch. 27, § 11 (codified at RCW 4.22.030).
However, in 1986 the Legislature altered tort liability in Washington by abolishing joint and several liability in most circumstances in favor of proportionate liability. Laws of 1986, ch. 305. Washburn, 120 Wash.2d at 294, 840 P.2d 860. RCW 4.22.030, the provision previously establishing joint and several liability, was amended in 1986 to read "Except 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." (Amendatory language emphasized.) RCW 4.22.070 is the exception which has now become the rule. 5
RCW 4.22.070, the centerpiece of the 1986 amendatory package, requires all liability be apportioned unless a listed exception applies in which case joint and several liability is retained. 6 The operative language of RCW 4.22.070(1) provides: In all actions involving fault of more than one entity .... [t]he liability of each defendant shall be several only and shall not be joint except....
RCW 4.22.070(1).
We have repeatedly acknowledged RCW 4.22.070 abolishes joint and several liability in Washington in favor of proportionate liability, 7 with joint and several liability retained only in several explicitly listed exceptions. In the leading case of Washburn, 120 Wash.2d at 294, 840 P.2d 860, we summarized that "several liability is now intended to be the general rule." In Gerrard v. Craig, a unanimous opinion, we reiterated "RCW 4.22.070 establishes several liability as the rule in cases involving multiple tortfeasors, but identifies exceptions to the rule...." 122 Wash.2d at 292, 857 P.2d 1033. In Anderson v. City of Seattle, 123 Wash.2d 847, 850, 873 P.2d 489 (1994), we again unanimously held "RCW 4.22.070(1) establishes several liability as the general rule, but retains joint and several liability under a limited number of circumstances...." 8
At oral argument, however, counsel for Kottler asserted joint and...
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