Seattle First Nat. Bank v. Shoreline Concrete Co.

• Decision Date: 28 December 1978
• Docket Number: No. 44996,44996
• Citation: 588 P.2d 1308,91 Wn.2d 230
• Parties: SEATTLE FIRST NAT'L BANK, Wenatchee Valley Branch, Personal Representative of the Estate of George Allen Stanford, Deceased, Petitioner, v. SHORELINE CONCRETE CO., d/b/a Columbia Concrete Products, and Dico Corp., d/b/a Waterloo Unloader, Inc., Respondents.
• Court: Washington Supreme Court

Page 230

91 Wn.2d 230

588 P.2d 1308

SEATTLE FIRST NAT'L BANK, Wenatchee Valley Branch, Personal Representative of the Estate of George Allen Stanford, Deceased, Petitioner, v. SHORELINE CONCRETE CO., d/b/a Columbia Concrete Products and Dico Corp., d/b/a Waterloo Unloader, Inc., Respondents.

No. 44996.

Supreme Court of Washington, En Banc.

Dec. 28, 1978.

Sullivan, Morrow & Longfelder, Daniel F. Sullivan, Seattle, for petitioner.

Jeffers & Danielson, P. S., Wenatchee, Baird & White, Ephrata, Keller, Rohrback, Waldo & Hiscock, Reed, McClure, Moceri & Thonn, Seattle, for respondents.

STAFFORD, Justice.

This court granted direct review of a trial court order which restricts the liability of multiple tort-feasors to their apportioned fault. We affirm in part, reverse in part and remand for trial.

George Stanford, an employee of Batterman Engineering and Construction Co. (Batterman), was electrocuted when the boom of the truck upon which he was working came in contract with a high-energy power line. The truck was owned and operated by Shoreline Concrete Co. (Shoreline).

Seattle First National Bank (Sea-1st), as personal representative of the Stanford estate, commenced an action for wrongful death against Shoreline and Dico Corp. (Dico), the manufacturer of the boom. Sea-1st alleged negligent reckless and wanton misconduct by Shoreline and additionally asserted strict liability and a warranty claim against Dico. ¹ The complaint also prayed for judgment against "any other defendant that might later be joined by way of third-party complaint . . . who might be responsible for decedent's death . . ."

Shoreline and Dico, by third-party complaints, asserted claims for indemnity, contribution or apportionment against Batterman. At this juncture, Batterman moved for a summary judgment of dismissal arguing that the Industrial Insurance Act (RCW 51.04 et seq.) barred the third-party claims. Apparently before the hearing on Batterman's motion, Dico was granted leave to add as an additional third-party defendant Cutler-Hammer, Inc. (Cutler), who was the manufacturer of the boom's toggle switch. ²

The trial court denied Batterman's motion and entered the order for which review is here sought. Insofar as relevant, the order provides that (1) Batterman shall remain a party to the action; (2) the jury shall apportion the "fault" of all parties (plaintiff, defendants and third-party defendants); (3) each defendant and third-party defendant's liability to Sea-1st shall be limited to that party's apportioned "fault"; and (4) any judgment entered against Batterman will be fully satisfied upon proof of Batterman's premium payments into the Industrial Insurance Fund.

Sea-1st sought direct review asserting that the order (1) abolishes the joint and several liability of multiple tort-feasors; (2) improperly directs that Stanford's contributory negligence shall be a damage-reducing factor in a strict liability action; and (3) by retaining Batterman as a party to the action, is inconsistent with Batterman's immunity under the Industrial Insurance Act and thus prejudices the recovery rights of the Stanford estate. For reasons not here relevant, Batterman has not sought review.

The challenged order raises three basic issues. I. Shall the joint and several liability of multiple tort-feasors be abolished? II. In an action based upon a defendant's strict liability, is a plaintiff's contributory negligence a damage-reducing factor? III. Should Batterman, an employer covered by the Industrial Insurance Act, have been retained as a third-party defendant in this action wherein the underlying conduct giving rise to Batterman's liability is its alleged negligence to Stanford, the decedent?

I. JOINT AND SEVERAL LIABILITY.

All parties agree the challenged order would abolish the joint and several liability of multiple tort-feasors by restricting each tort-feasor's liability to the injured party to that tort-feasor's respective fault. Additionally, the order implicitly requires the injured party to seek recovery from All potential tort-feasors in one lawsuit to effectuate full recovery.

This is a radical departure from our traditional rules of liability. Respondents suggest two reasons in support of such a change. First, they urge that joint and several liability should only be imposed upon those multiple tort-feasors who cause a "joint tort." Second, they argue that the recent adoption of comparative negligence (RCW 4.22.010) and the apparent "trend" permitting Contribution among multiple tort-feasors logically require that we discard joint and several liability. We disagree.

It has long been recognized that the single tort-feasor is liable for all damage for which his tortious conduct is a proximate cause. See Boeing Co. v. State, 89 Wash.2d 443, 448, 572 P.2d 8 (1978); Mason v. Bitton, 85 Wash.2d 321, 326, 534 P.2d 1360 (1975); Litts v. Pierce County, 5 Wash.App. 531, 536-37, 488 P.2d 785 (1971). See also W. Prosser Joint Torts and Several Liability, 25 Cal.L.Rev. 413 (1937); F. Harper & F. James, 1 The Law of Torts, § 10.1 (1956); W. Prosser, Law of Torts, § 52 (4th ed. 1971); 2 Restatement (Second) of Torts §§ 434(2), 439 (1965). In the case of multiple tort-feasors the principle is the same. That is, each multiple tort-feasor is personally liable for any injury for which his tortious act is A proximate cause. See W. Prosser, Law of Torts, §§ 46, 47; F. Harper & F. James, The Law of Torts, § 10.0.

Multiple tort-feasors are often characterized as " joint", "concurrent", or "successive" when differentiating between the Type of harm caused and the Nature of the duty owed. Joint tort-feasors are those who have acted in common or who have breached a joint duty. White Pass Co. v. St. John, 71 Wash.2d 156, 158, 427 P.2d 398 (1967); Young v. Dille, 127 Wash. 398, 404, 220 P. 782 (1923); F. Harper & F. James, The Law of Torts, § 10.1. Concurrent tort-feasors are those whose independent acts concur to produce the injury. See Boeing Co. v. State, supra, 89 Wash.2d at 448, 572 P.2d 8; Mason v. Bitton, supra, 85 Wash.2d at 326, 534 P.2d 1360; Litts v. Pierce County, supra, 5 Wash.App. at 534-37, 488 P.2d 785. Significantly, the Harm caused by both joint and concurrent tort-feasors is Indivisible. The distinguishing factor between these types of tort-feasors is the duty breached. Joint tort-feasors breach a joint duty whereas concurrent tort-feasors breach separate duties. ³

Since the harm caused by both joint and concurrent tort-feasors is indivisible, similar liability attaches. We have long held that such tort-feasors are each liable for the entire harm caused and the injured party may sue one or all to obtain full recovery. While respondent correctly notes that such liability at common law applies only to joint tort- feasors, the indivisible nature of the harm caused by both of these tort-feasors, requires, at a minimum, that each be wholly responsible for the entire harm caused.

While the indivisibility of the harm caused warrants imposition of entire liability upon those tort-feasors, sound policy reasons also support application of the procedural, or several, aspect of the liability rule. The cornerstone of tort law is the assurance of full compensation to the injured party. To attain this goal, the procedural aspect of our rule permits the injured party to seek full recovery from any one or all of such tort-feasors. So long as each tort-feasor's conduct is found to have been A proximate cause of the Indivisible harm, we can conceive of no reason for relieving that tort-feasor of his responsibility to make full compensation for all harm he has caused the injured party. What may be equitable Between multiple tort-feasors is an issue totally divorced from what is fair to the injured party. Thus, we cannot accept respondents' suggestion that joint and several liability is appropriate only for "joint" tort-feasors.

Next, we examine whether comparative negligence necessitates a limitation upon a plaintiff's right to seek full compensation. In short, does comparative negligence dictate that joint and several liability be abandoned?

Comparative negligence represents an attempt to achieve greater fairness in tort law. Wenatchee Wenoka Growers Ass'n v. Krack Corp., 89 Wash.2d 847, 849-50, 576 P.2d 388 (1978). It operates in favor of an injured party by allowing, rather than barring, recovery by one who is contributorially negligent. Wenatchee Wenoke Growers Ass'n v. Krack Corp., supra at 850, 576 P.2d 388; Godfrey v. State, 84 Wash.2d 959, 965, 530 P.2d 630 (1975); RCW 4.22.010. While comparative negligence Increases the chance of recovery by one who is contributorily negligent, respondents now suggest that we Restrict these rights under the rubric of comparative negligence. But, from the perspective of the recovery rights of the injured party, comparative negligence and the suggested abolition of joint and several liability are completely inconsistent.

A second reason convinces us that comparative negligence does not require abolition of joint and several liability. Four state legislatures appear to have modified the rule when enacting comparative negligence-contribution statutes. See Kan.Stat.Ann. § 60-258a; Vt.Stat.Ann. Title 12 § 1036; N.H.Rev.Stat.Ann. § 507:7-a; Nev.Laws § 41.141. Had our legislature intended a similar change it could have so provided, but it did not. As Professor Schwartz notes in his treatise on comparative negligence:

The concept of joint and several liability of tort-feasors has been retained under comparative negligence, Unless the statute specifically abolishes it, in all states that have been called upon to decide the question.

(Italics ours.) Schwartz, Comparative Negligence, § 16.4 at page 253 (1974). See, e. g., American Motorcycle Ass'n v. Superior Court, 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899 (1978); Kelly v. Long Is. Lighting Co., 31 N.Y.2d 25, 334 N.Y.S.2d 851, 286 N.E.2d 241 (1972);...