SEATTLE UNIVERSITY LAW REVIEWVolume 29, No. 3SPRING 2006
NOTE
Tegman v. Accident and Medical Investigations, Inc.: The Re-Modification of Modified Joint and Several Liability by Judicial Fiat
Victor J. Torres(fn*)
That the innocent, though they may have some connexion or dependency upon the guilty (which, perhaps, they themselves cannot help), should not, upon that account, suffer or be punished for the guilty, is one of the plainest and most obvious rules of justice.
-Adam Smith(fn1)
I. Introduction
The Washington Supreme Court's decision in Tegman v. Accident and Medical Investigations, Inc.(fn2) is surprising given that the equities of the situation strongly favored complete compensation to a fault-free plaintiff with all defendants jointly and severally liable for all damages. Yet, in a 5-4 decision, the Washington Supreme Court held that negligent tortfeasors cannot be held jointly and severally liable with tortfeasors who have committed intentional acts.(fn3) Further, in determining liability, a court must first segregate negligent from intentional tortfeasors, and then apportion liability between all negligent parties.(fn4) The majority decision leaves the innocent plaintiff, Maria Tegman, to bear most of the financial cost of her own injuries, and allows the defendant attorney, Lorinda Noble, to reduce her liability by blaming the criminal, G. Richard McClellan, whose purposes she furthered.(fn5)
The court's holding in Tegman strips certain plaintiffs of the chance to be made whole, misguides judges and juries in their determination of damages, evades ruling on issues it exposes, and should be reversed in its infancy. If the court's opinion rests on the presumption that Washington tort law is based on a pure comparative fault system, then the court should also acknowledge that joint and several liability survives when the plaintiff has no fault to which the defendant can compare. The rationale of the Tegman opinion, however, is nothing short of mental gymnastics-plaintiffs who are fault free are left to wonder whether they may be left with the bill for injuries caused by others; defendants are celebrating an unearned victory and new ally; attorneys on both sides must now consider new and unprecedented legal strategies; judges face application of this logistical nightmare with the possibility of absurd results; and the public at large is forced to accept a ruling with results that the legislature it elected did not contemplate or foresee.
Simply put, the majority got it wrong. In order to reduce the exposure of some well-capitalized parties, the Washington Legislature created a system relieving some tortfeasors of joint and several liability.(fn6) However, the legislature also wanted fault-free plaintiffs to obtain a complete recovery.(fn7) The legislature balanced these two goals in the Tort Reform Act of 1986. But the Tegman majority, by giving too much weight to one legislative goal, has eviscerated the other, and failed to mirror the legislature's complete intent in a context the legislature did not contemplate.
This Note explores the Tegman decision in the context of joint and several liability between negligent and intentional actors within Washington State. Part II places Washington tort law into perspective, including the doctrine of joint and several liability, both before and after the Tort Reform Act of 1986. Part III discusses the Tegman decision, methods used in other jurisdictions for dealing with similar situations, and potential solutions to the problems posed by the Tegman holding. Finally, Part IV concludes and urges both the court to reconsider its ruling in Tegman and the legislature to clarify its intent.
II. Tort Law-A Washington Perspective
This Part lays the foundation necessary to critically analyze the court's decision in Tegman. First, the doctrine of joint and several liability will be introduced. Next, the principles of comparative negligence and its contentious relationship with joint and several liability will be examined as they struggle to co-exist. Finally, the issue of how Washington, through legislation and subsequent interpretation of the Tort Reform Act of 1986, has enabled joint and several liability to survive within a pure, yet modified, comparative negligence regime will be discussed.
A. The Common Law Roots of Joint and Several Liability
The theory of joint and several liability was a judicially created vehicle for enforcing remedies for wrongs committed and, justified on public policy grounds, it represented a deliberate allocation of risk.(fn8) The application of joint and several liability served dual purposes: (1) it acted as a deterrent by making a defendant liable for all the consequences of negligence, even if the defendant's negligence was not the only cause of injury, and (2) it encouraged settlement when settling defendants were protected by statute from an action for contribution.(fn9)
The seminal case illustrating the doctrine of joint and several liability is Summers v. Tice.(fn10) The California Supreme Court held that in a case involving the tortious conduct of two or more actors, where the harm to the plaintiff has been caused by only one of them, and it is uncertain as to which caused the harm, the burden of proof is on the tortious actors to prove their innocence.(fn11) While on a hunting trip, Summers received injuries to his right eye and face after both of his two companions shot in his direction.(fn12) When the three men formed a triangle, each of the defendants had an unobstructed view of Summers, and each of the defendants was armed with an identical shotgun and shells, making it impossible to determine which hunter had caused Summers's injuries.(fn13)The court reasoned that the defendants should be left to resolve any apportionment problems among themselves because defendants are often in a better position than a plaintiff to proffer evidence of the cause of plaintiff s injuries.(fn14) The court further noted that, under the circumstances, each defendant should be held liable for the entire damage award, regardless of whether each defendant acted in concert or independently.(fn15) Thus, despite Summers's inability to identify which hunter caused his injuries, the court recognized that "where the matter of apportionment is incapable of proof, the innocent wronged party should not be deprived of his right to redress. The wrongdoers should be left to work out between themselves any apportionment."(fn16)
An understanding of the implications of the various types of liability is necessary in order to appreciate the doctrine of joint and several liability. Defendants are jointly liable when the liability is shared by two or more parties(fn17) who may or may not be joined in a single suit.(fn18) Defendants are severally liable when one's liability is separate and distinct from the other's liability, and the plaintiff may bring a separate action against one defendant without joining the other liable parties.(fn19) When defendants are jointly and severally liable, the liability may be apportioned either among two or more parties, or to only one or a few select members of the liable group, at the plaintiffs discretion.(fn20) The plaintiff is not required to bring suit against all of the defendants, but can simply proceed against the defendant who seems most exposed to liability or most capable of responding to suit and satisfying a judgment.(fn21)
At common law, a plaintiff asserting a tort cause of action is entitled to pursue any or all responsible defendants and thereafter collect any part or all of the judgment against any one or more of the defendants found to have contributed to the personal injury or property damage.(fn22) Thus, each individual defendant is liable for the entire award of damages regardless of his or her share of fault in comparison to the other defendants. Multiple defendants acting in concert was the situation which generally gave rise to joint and several liability under common law.(fn23) In this scenario, all of the defendants would be responsible even if only one of them caused the harm.(fn24) This type of tort was normally intentional, sometimes criminal in nature, and often involved a conspiracy.(fn25)
In modern times, multiple defendants have been classified based upon different situations where joint and several liability may be imposed. These defendants have been labeled joint tortfeasors, concurrent tortfeasors, and successive tortfeasors. Joint tortfeasors are those who have acted in common or who have breached a joint duty.(fn26) In order for tortfeasors to be classified as joint, the following elements must be met: (1) a concert of action, (2) a unity of purpose or design, and (3) two or more defendants working separately but to a common purpose, each acting with the knowledge and consent of the others.(fn27) Concurrent tortfeasors act independently, but their separate acts cause a single indivisible injury.(fn28) Successive tortfeasors act independently, with respect to both time and duty, and each causes separate and identifiable harms to the plaintiff.(fn29) However, an anomaly in the law exists when two independent acts produce an indivisible harm.(fn30) Thus, successive tortfeasors whose independent acts cause an indivisible harm may be held jointly and severally liable.
Under common law joint and several liability, multiple...
