The Constitutional Validity of the Modification of Joint and Several Liability in the Washington Tort Reform Act of 1986 Gregory C. Sisk

• Publication year: 1990

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 13, No. 3SPRING 1990

ARTICLES

The Constitutional Validity of the Modification of Joint and Several Liability in the Washington Tort Reform Act of 1986

Gregory C. Sisk(fn*)

Table of Contents

I. Introduction.......................................... 433

II. Background.......................................... 436

A. Historical Context of the Statutory Modification of the Joint and Several Liability Rule............................................. 436

B. Washington's Statutory Modification of Joint and Several Liability (Washington Revised

Code Section 4.22.070) .......................... 439

III. Right to Jury Trial.................................. 441

IV. Due Process.......................................... 443

A. Substantive Due Process and Fundamental Fairness......................................... 443

B. Purported Due Process Right to Quid Pro Quo or Adequate Alternative Remedy for Change

in Common Law Rule.......................... 446

C. Procedural Due Process ........................ 454

V. Equal Protection/Privileges and Immunities....... 458

A. Introduction..................................... 458

B. Standard of Review............................. 459

C. Application of Equal Protection Test .......... 466

1. Distinction Between "Innocent" and Culpable Plaintiffs .......................... 467

2. Distinction Between Defendants Acting Concurrently and Defendants Acting in Concert or in an Agency Relationship...... 468

3. Distinction Between Defendants and Nonparties................................... 469

4. Distinctions Based on the Three Statutory Exceptions................................... 471

D. Alternative Approach Based on Washington Privileges and Immunities Clause.............. 474

E. Oregon's Interpretation of Its State Privileges and Immunities Clause......................... 478

VI. Special Legislation................................... 482

VII. Separation of Powers................................ 483

VIII. Single Subject in Bill................................ 486

IX. Conclusion........................................... 487

I. Introduction

With the Washington Supreme Court having recently invalidated the statutory cap placed on awards of noneconomic damages to tort plaintiffs(fn1) as a violation of the state constitutional right to a jury trial,(fn2) we may expect an increasing onslaught upon other controversial provisions of the Washington Tort Reform Act of 1986.(fn3) In particular, the modification of the common law doctrine of joint and several liability, which was also accomplished by the Tort Reform Act and is codified at section 4.22.070 of the Washington Revised Code,(fn4) has already become a target of plaintiffs' attorneys in tort litigation and has also come under repeated attack by commentators in Northwest regional law reviews.(fn5) The need for eventual resolution of this dispute by the Washington Supreme Court seems certain.

The legislative modification of Washington's joint and several liability rule sought to achieve greater fairness in tort law by ameliorating the harsh common law doctrine, which had held each defendant responsible for the entire tort judgment even if that defendant was found to have been only slightly at fault.(fn6) The legislature also hoped thereby to reduce the uncertainty in tort law that had contributed to a crisis in the availability and affordability of liability insurance.(fn7) To accomplish its purposes, the legislature largely abandoned the archaic common law doctrine of joint and several liability in cases where the plaintiff is also at fault. Consistent with the adoption of comparative negligence several years before, the legislature mandated that recovery of tort damages generally be limited to that portion of damages for which each individual defendant is found to have been responsible.

The plaintiffs' bar and other detractors of the legislation have raised numerous challenges to this doctrinal modification, both in court and in the legal literature, based on provisions of the Washington Constitution.(fn8) Some of the constitutional questions raised, particularly procedural due process concerns,(fn9) will merit careful attention when the statute is interpreted by the courts in the context of actual cases. However, other constitutional challenges, especially those based on substantive due process(fn10) and equal protection or privileges and immunities,(fn11) ultimately resolve into mere policy critiques of the direction taken by the state legislature in restoring some balance to the tort liability system. The wisdom of the statute, however, is not a proper subject of judicial review; instead, the courts must give "every reasonable presumption in favor of the constitutionality of the law."(fn12)

To balance the legal debate, this Article suggests that the statutory revision and partial abolition of joint and several liability was the necessary and appropriate next step in the evolution of modern tort law to a system founded upon the concept of comparative fault among all parties. Properly understood in its historical context and interpreted under established, rather than innovative and unfounded, principles of constitutional law, the modification of joint and several liability passes muster under the Washington Constitution.

II. Background

A. Historical Context of the Statutory Modification of the Joint and Several Liability Rule

Prior to the adoption of comparative negligence and the development of a tort system based on apportionment of fault, the common law provided for joint and several liability among all tortfeasors who bore some responsibility for an innocent victim's injury.(fn13) Although this concept of liability was initially limited to cases in which defendants had acted in concert, usually intentionally, to effect a single injury,(fn14) the rule eventually expanded to cover multiple tortfeasors whose actions jointly, concurrently, or successively caused injury to a plaintiff.(fn15)

Under this doctrine, each tortfeasor was held jointly and severally liable for all damages that ensued.(fn16) A plaintiff was permitted to obtain and enforce a judgment in the full amount of the damages against one or all of the joint tortfeasors.(fn17) Thus, even a defendant whose role in the tortious conduct had been relatively minor could be charged with the entire judgment.

However, at common law there was an important exception to the rule of joint and several liability, indeed to the plaintiff's ability to recover from any defendant at all. If the plaintiff was found to have been contributorily negligent, that is, culpable to any degree for his own injury, he was absolutely barred from any recovery.(fn18) Thus, even if one or more defendants had also contributed to the injury, the plaintiff's own negligence, however slight, made him ineligible to receive any award of damages.

The rules of joint and several liability and contributory negligence evolved together.(fn19) Both doctrines "grew out of the common law concept of the unity of the cause of action; the jury could not be permitted to apportion the damages, since there was but one wrong."(fn20) This conceptual underpinning for joint and several liability began to collapse with the decline of the rule of contributory negligence and the advent of comparative fault in tort law.

As states introduced the concept of comparative fault and allowed partially culpable plaintiffs to recover by allocating the fault for injuries between plaintiffs and defendants, the premise that wrongs were inherently indivisible or that responsibility could not rationally be apportioned among multiple parties fell into disfavor. The adoption of comparative negligence between plaintiffs and defendants and the abandonment of the strict contributory negligence rule sounded the death knell as well for the doctrine of joint and several liability among defendants.

A few states abolished the doctrine of joint and several liability by judicial action finding the rule inconsistent with the theory of comparative fault.(fn21) The Washington Supreme Court declined to do so, holding that the adoption of comparative negligence did not require the abolition of the joint and several liability doctrine.(fn22) The court recognized, however, that the legislature had the power to make such a change.(fn23)

In 1986, the Washington State Legislature took that next step in the evolution of tort law by adopting the Tort Reform Act,(fn24) which, inter alia, abolished the doctrine of joint and several liability in most cases in which the plaintiff is partially at fault for his injuries. With the enactment of section 4.22.070 of the Washington Revised Code,(fn25) the legislature approached a pure comparative fault system which equates recovery of damages and the duty to pay with the degree of fault. The legislature concluded that a fuller realization of this progressive liability system required a change both in the common law rule of contributory negligence-which had been accomplished by statutory revision in 1973(fn26)-and now in the doctrine of joint and several liability.

Thus, Washington joined a host of other states that have acted statutorily to abandon or significantly modify the joint and several...