Kussman v. City and County of Denver

• Decision Date: 30 September 1985
• Docket Number: No. 83SC214,83SC214
• Citation: 706 P.2d 776
• Parties: Barbara J. KUSSMAN, Petitioner, v. CITY AND COUNTY OF DENVER, Respondent.
• Court: Colorado Supreme Court

Page 776

706 P.2d 776

Barbara J. KUSSMAN, Petitioner, v. CITY AND COUNTY OF DENVER, Respondent.

No. 83SC214.

Supreme Court of Colorado En Banc.

Sept. 30, 1985.

Rehearing Denied Oct. 21, 1985.

E. Gregory Martin, Martin & Snyder, Boulder, and Debra A. Halperin, Dominick & Halperin, Boulder, for petitioner.

Stephen H. Kaplan, Denver City Atty., Carl R. Mangino, Asst. City Atty., Denver, for respondent.

Bennett S. Aisenberg, Denver, for amicus curiae Colorado Trial Lawyers Ass'n.

Richard W. Laugesen, Denver, amicus curiae.

DUBOFSKY, Justice.

We granted certiorari in Kussman v. City and County of Denver, 671 P.2d 1000 (Colo.App.1983), to consider whether a tortfeasor found liable for less than the full amount of the plaintiff's damages is entitled to have deducted from its liability the amount paid in settlement to the plaintiff by another tortfeasor responsible for the same injury. The court of appeals held that the Uniform Contribution Among Tortfeasors Act (Act), §§ 13-50.5-101 to -106, 6 C.R.S. (1984 Supp.), requires a deduction for the settlement amount. We disagree and reverse.

I.

On September 18, 1977, the plaintiff's van collided with a fire truck owned by the City and County of Denver (city) at an intersection in Denver. At the time of the collision, Janna Gray was driving the plaintiff's van and the plaintiff, Barbara Kussman, was a passenger in the van. The plaintiff commenced an action against the city in Denver District Court, alleging that the injuries she suffered in the collision were caused by the negligence of the driver of the fire truck, and that the city was liable for this negligence under the doctrine of respondeat superior. The city, in its answer, claimed inter alia that Gray's negligence was the sole cause of the plaintiff's injury, and that Gray's negligence should be imputed to the plaintiff in order to defeat her claim. The city also joined Gray as a third-party defendant, alleging that it had suffered $2,055 in damages as a result of Gray's negligence. ¹

During trial, the plaintiff gave Gray a covenant not to sue in exchange for a payment of $35,000. The jury found that the city was 51% responsible for the accident and Gray 49%. See section 13-21-111, 6 C.R.S. (1973 & 1984 Supp.). The jury also imputed Gray's negligence to the plaintiff because the plaintiff owned the car in which she was a passenger. See Moore v. Skiles, 130 Colo. 191, 274 P.2d 311 (1954). ² The jury assessed the city's damages at $2,000 and the plaintiff's damages at $164,737. By stipulation of the parties, the plaintiff's damages were reduced to $153,037 by deducting $11,700 that the plaintiff had received from her insurance carrier under her personal injury protection coverage. See § 10-4-713(1), 4 C.R.S. (1984 Supp.). Because the plaintiff had been found 49% at fault as a result of the negligence imputed from Gray, judgment was entered against the city in favor of the plaintiff for 51% of the plaintiff's total damages, or $78,048.

The city filed a motion to amend judgment, contending that it was entitled under the Act to set off Gray's $35,000 settlement with the plaintiff from the judgment amount of $78,048. The district court denied the motion. The court of appeals reversed, holding that the city was entitled to set off the amount of the settlement under section 13-50.5-105 of the Act, making the city liable to the plaintiff for $43,048 rather than $78,048. We disagree.

II.

The question in this case is whether Gray and the city are "liable in tort for the same injury" under section 13-50.5-105 in a manner that permits the city to set off from its liability the $35,000 Gray paid in consideration for the covenant not to sue. Section 13-50.5-105 provides:

(1) When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:

(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and

(b) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.

In order to interpret the phrase "liable in tort for the same injury," we must look at the language and policies of the Act as a whole.

The underlying purpose of the Act is to permit the equitable apportionment of damages among the tortfeasors responsible for those damages. National Farmers Union Property and Casualty Co. v. Frackelton, 662 P.2d 1056, 1058 (Colo.1983); Hayon v. Coca-Cola Bottling Co., 375 Mass. 644, 378 N.E.2d 442, 445 (1978); Uniform Contribution Among Tortfeasors Act, Commissioners' Prefatory Notes, 12 U.L.A. 59-60 (1975). Towards this end, section 13-50.5-102 of the Act provides for contribution under the following circumstances:

(1) Except as otherwise provided in this article, where two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.

(2) The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability.

The "pro rata share" of damages assigned to each tortfeasor is equal to the degree of fault assigned to the tortfeasor by the jury. § 13-50.5-103. ³ The Act's aim is to ensure that no tortfeasor is compelled to pay more than its appropriate share of the damages as measured by the degree of fault assigned to it by the jury. Where a tortfeasor pays more than its share, it is entitled to contribution from other tortfeasors to the extent of excess payment. Section 13-50.5-105, providing for reduction of the judgment entered against tortfeasors to the extent of the settlement amount paid by tortfeasors who have been released, furthers this aim by ensuring that a tortfeasor who has not settled will not bear the full burden of damages simply because another tortfeasor has settled. See Uniform Contribution Among Tortfeasors Act § 4, Commissioners' Comment, 12 U.L.A. 99.

In our view, the Act's policy of equitably distributing damages is best served in this case by not deducting the amount paid by Gray in settlement from the judgment against the city. The city was found 51% at fault and judgment was rendered against it for 51% of the plaintiff's damages. Deducting Gray's settlement figure from the judgment rendered against the city would reduce the city's liability below its fair share as measured by fault and present the city with a windfall.

The city argues that this conclusion is incorrect because, had Gray been joined as a defendant by the plaintiff in the original suit, Gray would have been liable for 49% of the $78,048 liability of the city. Under this hypothesis, the $35,000 settlement figure, if deducted from the judgment against the city, would not be a windfall, but rather would represent Gray's share, as a defendant, of the $78,048 in damages. The city urges the following analysis: If Gray had been joined as a defendant, the city and Gray would have been jointly and severally liable for the full $153,000 in damages. However, the city still would have been able to impute Gray's negligence to the plaintiff. At the same time, Gray would not have been able to do so because a driver cannot impute his own negligence to a passenger-owner as a defense to the passenger's claim against the driver for negligence. Sommermeyer v. Price, 198 Colo. 548, 552, 603 P.2d 135, 138-39 (1979). Therefore, the city contends, the city would have been jointly and severally liable with Gray for $78,048 of the damages only, while Gray, unable to impute her negligence to the plaintiff, would be individually liable for the remainder of the damages. Because the city thus would have been liable for only 51% of the $78,048, a judgment against it for the entire amount, according to the city, would force payment of "more than [the city's] pro rata share of the common liability" and entitle it to contribution from Gray under section 13-50.5-102(2). The city concludes that because it would be eligible for contribution Gray had she been joined as a defendant, it is eligible here to deduct Gray's settlement amount from the judgment against it.

We reject this argument. It is true that section 13-50.5-102(2) states that a tortfeasor who has paid more than his "pro rata share of the common liability" may recover contributions from the other tortfeasors for the amount paid in excess of the pro rata share. However, the city's $78,048 share of damages could not be viewed as a "common liability" of the city and Gray within the meaning of section 13-50.5-102(2), even under the analysis urged by the city. The term "common liability" must be interpreted in light of the final sentence of section 13-50.5-102(2): "No tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability." (emphasis supplied). The city's pro rata share of the entire liability was 51%, which was more than Gray's 49% pro rata share of the entire liability. Therefore, under section 13-50.5-102(2), Gray could not have been required to contribute anything towards the city's 51% share of damages once she had discharged, either through contribution or direct payment to the plaintiff, her own 49% share of the entire damages.

Moreover, other language in the Act convinces us that a tortfeasor's proportionate share of liability cannot be considered a "common liability" where, as here, that...