Scott v. Cascade Structures

Decision Date01 December 1983
Docket NumberNo. 48865-7,48865-7
PartiesArlene SCOTT, Personal Representative of the Estate of Paul A. Scott, Deceased, Appellant, v. CASCADE STRUCTURES, Respondent.
CourtWashington Supreme Court

Kenneth A. Lee, Everett, Wash., for appellant.

Merrick, Hofstedt & Lindsey, Sidney Snyder, Seattle, Wash., for respondent.

STAFFORD, Justice.

Appellant, Arlene Scott, personal representative of her husband's estate, appeals from a $130,000 judgment entered against respondent, Cascade Structures Corp. (Cascade). Appellant asks this court to interpret the contribution statute, RCW 4.22.060(2), to determine whether a reasonable settlement award should be subtracted from the jury verdict before or after subtracting decedent's contributory negligence. Appellant further challenges the constitutionality of the tort and products liability reform act, RCW 4.22 and 7.72. We affirm the trial court's method of computation and reject appellant's constitutional challenge.

On November 1, 1979, Paul Scott was killed when he fell from the roof of a building then under construction. His widow and personal representative, Arlene Scott, brought a wrongful death action against respondent, Cascade, the roofing subcontractor; Aldrich and Hedman Construction Co., the general contractor; Pacific Cascade Corp., owner of the building; Lane Co., the developer; Ebert Pearson, a safety inspector for the Department of Labor and Industries; and the State of Washington. Prior to trial, appellant's claims against the State and Pearson were dismissed on summary judgment. The crossclaims of the remaining defendants against the State were also settled and dismissed.

Trial on the wrongful death action began on May 7, 1982 with respondent Cascade, Aldrich & Hedman Construction Co., Lane Co. and Pacific Cascade Corp. as defendants. After several days of trial, appellant and all remaining defendants except respondent Cascade reached a settlement agreement whereby appellant would receive $60,000 in return for a covenant not to sue. The trial judge held a reasonableness hearing pursuant to RCW 4.22.060(1) and determined that $60,000 was reasonable, thereby extinguishing respondent Cascade's crossclaims for contribution against the settling defendants. The trial continued with respondent Cascade as the only defendant.

The trial court gave to the jury a series of four questions to which the jury responded as follows:

QUESTION NO. 1: Was there negligence by the defendant Cascade Structures which was a proximate cause of the death of Paul Scott?


QUESTION NO. 2: What is the total amount of plaintiff's damages?

ANSWER: $570,000.

QUESTION NO. 3: Was there negligence by the decedent Paul Scott which was a proximate cause of his death?


QUESTION NO. 4: Using 100% as the total combined negligence of Cascade Structures and Paul Scott which contributed to the injury or damage to the plaintiff, what percentage of such negligence is attributable to Paul Scott?

ANSWER: 66 2/3%.

Over appellant's objection, the trial court first reduced the total damage award by 66 2/3 percent (i.e. the amount of contributory negligence), then subtracted the $60,000 settlement award, and finally entered judgment against respondent Cascade for $130,000 plus costs. Appellant contends the trial court should have subtracted the settlement award before deducting for the contributory negligence. Under appellant's method of computation, she would be entitled to $170,000. Cascade has paid the $130,000 judgment plus costs into the registry of the court. Appellant has since withdrawn these funds.


We turn first to Cascade's contention that by accepting and using the $130,000 judgment, appellant has waived her right to appeal.

Cascade relies on RAP 2.5(b) which provides:

(b) Acceptance of Benefits.

(1) Decision Subject to Modification. A party may accept the benefits of a trial court decision without losing the right to obtain review of that decision only (i) if the decision is one which is subject to modification by the court making the decision or (ii) if the party gives security as provided in subsection (b)(2).

(2) Other Decisions--Security. If a party gives adequate security to make restitution if the decision is reversed or modified, a party may accept the benefits of the decision without losing the right to obtain review of that decision. The trial court making the decision shall fix the amount and type of security to be given by the party accepting the benefits.

Cascade asserts that the instant appeal must be dismissed because the trial court judgment is not subject to modification by that tribunal and appellant has not provided the required security. While Cascade's quotation of RAP 2.5(b) is accurate, the rule is not applicable here.

The purpose of RAP 2.5(b) is to ensure that a party seeking review will be able to make restitution if a decision is reversed or modified on appeal. See Comment, RAP 2.5(b)(2). 86 Wash.2d 1152 (1976). In the instant case it is clear the amount of the jury verdict, which resulted in an award of $130,000, is not subject to reduction by this court. The only question is whether appellant is entitled to $40,000 more. Since this is not a case in which restitution may be required, there is no need for appellant to provide security.

Moreover, this court has stated that a party may proceed with an appeal after receiving the benefits of the judgment if that party would be entitled to the benefits regardless of the outcome of the appeal. Hinchman v. Point Defiance Ry., 14 Wash. 349, 356, 44 P. 867 (1896). See also Grignon v. Wechselberger, 70 Wash.2d 99, 101, 422 P.2d 25 (1966). This is consistent with the rule in other jurisdictions. Annot., Right of Appeal From Judgment or Decree as Affected by Acceptance of Benefit Thereunder, 169 A.L.R. 985, 1010 (1947). We therefore hold appellant has not waived her right to appeal.


Appellant's primary contention is that the trial court erred in its method of calculating the amount of final judgment. Prior to 1981, contribution among joint tortfeasors was generally prohibited. Wenatchee Wenoka Growers Ass'n v. Krack Corp., 89 Wash.2d 847, 576 P.2d 388 (1978). With the enactment of the Tort Reform Act in 1981, the Legislature overruled the common law and established a right of contribution between joint tortfeasors. Laws of 1981, ch. 27, § 12, codified as RCW 4.22.040. In creating a right of contribution, the Legislature sought to encourage settlement agreements between parties. Senate Journal, 47th Legislature (1981), at 635-36. RCW 4.22.060(2) addresses the effect of a settlement agreement by providing:

A release, covenant not to sue, covenant not to enforce judgment, or similar agreement entered into by a claimant and a person liable discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the claim of the releasing person against other persons is reduced by the amount paid pursuant to the agreement unless the amount paid was unreasonable at the time of the agreement in which case the claim shall be reduced by an amount determined by the court to be reasonable.

(Italics ours.)

The controversy herein centers on what is meant by "the claim of the releasing party against other persons". Appellant contends her "claim" is the total damages sustained as a result of her husband's death, i.e., $570,000. Appellant accordingly suggests the judgment should be calculated as follows:

                Plaintiff's gross damages (the "claim")    $570,000
                Amount paid in settlement                   (60,000)
                Plaintiff's share of negligence
                $510,000 x 2/3                      =      (340,000)
                Plaintiff's judgment against
                nonsettling defendant                      $170,000

This will be referred to as the "gross damages" approach. Under this approach, the figure of $510,000 would represent the total claim against the nonsettling defendant, respondent Cascade, from which plaintiff's share of the negligence vis-a-vis Cascade should be deducted.

The trial court construed appellant's "claim" as being the ultimate amount attributable to the negligence of others, i.e., $190,000. The court therefore computed damages as follows:

                Plaintiff's gross damages                $570,000
                Plaintiff's share of negligence
                $570,000 x 2/3                      =    (380,000)
                Plaintiff's damages attributable
                to negligence of others (the "claim")    $190,000
                Amount paid in settlement                 (60,000)
                Plaintiff's judgment against
                nonsettling defendant                    $130,000

This will be referred to as the "net damages" approach.

Appellant's proposed "gross damages" approach relies on a case decided shortly before enactment of the Tort Reform Act. DeMaris v. Brown, 27 Wash.App. 932, 621 P.2d 201 (1980), review denied, 95 Wash.2d 1014 (1981). In DeMaris, the Court of Appeals was faced with a situation identical to the one at hand. After setting forth the issue, the Court of Appeals concluded "the $10,000 settlement must first be deducted from the plaintiffs' total damages." DeMaris, at 945, 621 P.2d 201.

Appellant argues that because the Legislature did not expressly overrule this case in adopting the Tort Reform Act, DeMaris is still controlling. Although we did reaffirm the presumption that new legislation is consistent with prior case law in Glass v. Stahl Specialty Co., 97 Wash.2d 880, 887-88, 652 P.2d 948 (1982), this rule of construction is inapposite. DeMaris was decided under a common law scheme which recognized a right of indemnity while prohibiting contribution between joint tortfeasors. Enactment of the Tort Reform A...

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