Using the special verdict form for equitable distribution of fault

Closing argument: Using the special verdict form for equitable distribution of fault

Daniels, Jack

I.

INTRODUCTION

As a matter of axiomatic principle, comparative fault ensures that all parties involved in an action will be liable only in proportion to their individual share of the total fault.’ This article examines existing California jurisprudence, statutory law and the objectives of equitably distributing fault to all participants involved in a tort action rather than only to those whom a plaintiff chooses to sue or those remaining at the time of jury deliberations. California BAR Jury Instruction 16.72 (hereinafter “BAR 16.72”), is a special verdict form that contains an “Other Person” category for assigning responsibility for a plaintiff’s injuries to unidentified partieS.2 Utilizing this instruction ostensibly results in an equitable apportionment of fault.

In California, virtually no judicial consideration has been accorded the explicit identification of parties who are no longer part of a lawsuit at the time of jury deliberations. Customarily, defendants who have settled with a plaintiff, or who were not named by the plaintiff, are vaguely identified as “other person”on BAR 16.72. Explicitly identifying the “absent”‘ parties by name, rather than as “other person,” would ensure the jury’s cognizance of all parties who may be at fault for a plaintiff’s injuries.’ Given the dearth of judicial consideration, suggesting that the “Other Person” category be used to particularly identify absent parties for the jury, is a fairly novel idea in California.

Part 11 of this article briefly reviews the policy behind comparative fault and illustrates that inequitable apportionments of liability are contrary to the comparative fault principles codified in California Code of Civil Procedure, section 1431.2.’ Part III then reviews a case (in which the author was defense counsel) that exemplifies existing judicial reluctance to permit the explicit identification of absent parties on BAR 16.72. It also highlights BAR 16.72 which, when used to identify absent parties explicitly rather than as “Other Person,” offers a defense mechanism that ensures equitable apportionment of fault within California’s comparative fault regime. Finally, Part IV compares California’s comparative fault principles and special verdicts with those of other jurisdictions.

Thus, BAJI 16.72 and Civ. Code section 1431.2 provide the legislative basis within which to explicitly list and identify all parties to the action on a special verdict form. From the perspective of defense strategy, the salutary effect is an equitable apportionment of liability among all tortfeasors.

II

CIVIL CODE SECTION 1431.2 AND SEVERAL LIABILITY: THE BASIS FOR AN EQUITABLE DISTRIBUTION OF FAULT

California’s Proposition 51 marked the beginning of several liability for noneconomic damages in California. Proposition 51, also known as California’s 1986 Fair Responsibility Act, is codified as Civ. Code section 1431.2(a), which states: In any action for personal injury… or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault . . .’

Additionally, Civ. Code section 1431.1 states that the “legal doctrine of joint and several liability, also known as ‘the deep pocket rule,’ has resulted in a system of inequity and injustice.”‘ Proposition 51 rectified the potential unfairness to defendants who historically had been assigned responsibility for another defendant’s fault simply because co-tortfeasors were not identified by the plaintiff.

Civ. Code section 1431.2 mandates that each defendant shall be liable only for that defendant’s proportionate fault. In DaFonte v. Up-Right, Inc.,’ the California Supreme Court construed section 1431.2 to mean that a defendant is liable only for a proportionate share of non-economic damages as compared with all fault; not merely the fault of those defendants present in the lawsuit.’

When a defendant is prohibited from explicitly identifying and listing all parties who may be responsible for a plaintiff’s injuries, however, that defendant may be assigned an unfair and disproportionate amount of fault, contrary to Civ. Code section 1431.2, as interpreted by DaFonte.

This article does not evaluate the merits of comparative fault or several liability. The policy reasons that underlie comparative fault and several liability are presented briefly to support the author’s premise. Since California law mandates an equitable apportionment of fault among responsible parties, the “Other Person” category in BAR 16.72 should be employed by defense counsel to explicitly identify those parties who were not named in the plaintiff’s lawsuit, or those parties who settled with the plaintiff prior to or during trial.

III.

CHEN v. R.E.S.S.

A. Introduction

The Chen case involved a wrongful-death action occasioned by the death of a young child upon whom a kitchen island cabinet had fallen. The Chens purchased a home from the Willises, who had owned the home for 18 years. The Willises had commissioned the design, manufacture and installation of an island counter in the kitchen. Though Mrs. Willis attempted to locate the manufacturer, she was without success. The Willises could not remember who had designed or manufactured the cabinet.

The Willises sold the home when Claude Willis was transferred by his employer, Rockwell International (hereinafter “Rockwell”), which had a contractual relationship with Prudential Relocation Company (hereinafter “Prudential”) to facilitate the relocation of Rockwell employees. Prudential in turn held a contract with Real Estate Support Services (hereinafter “R.E.S.S.”) to perform home inspections and advise Prudential regarding any structural or mechanical problems with-the inspected -properties.

Claude and Betty Willis retained John Choi (dib/a Presidential Realty) to represent them in the real estate transaction. Kevin and Julie Chen retained Ming Chien of Coldwell Banker. Ming Chien then suggested that the Chens hire Pacific Home Inspection to perform an inspection on their behalf. This inspection occurred on March 15, 1995.

The Chens visited the property on at least four occasions prior to the accident. The final occasion was their general walk-through prior to the close of escrow. During the inspections, the Chens took no particular notice of the island counter. At trial, however, Mr. Chen acknowledged that he had a duty to inspect the island counter.

On April 30, 1995, the Chen family went to the property in the company of Ming Chien. Carpet company representatives also were present. Various samples of carpeting were placed on the island counter, where Mr. Chen eventually signed a contract for the carpet. He noticed no instability in the counter when he signed the contract.

The Chens had a nine-year-old son, Jeffrey, and a three-year-old daughter, Lucy. Lucy routinely climbed on structures such as monkey bars at the playground, and on furniture such as the table in the house rented by the Chens prior to their purchase of the Willis home. Ming Chien saw the island counter as it fell onto Lucy, but no one saw how the accident actually occurred. Lucy was crushed beneath the island counter; she was pronounced dead approximately two hours after admission to a nearby hospital.

The Chens filed suit, naming as defendants: Prudential, John Choi (d/b/a Presidential Realty), the Willises, Pacific Home Inspection, and R.E.S.S. The suit, however, did not name Ming Chien, their real estate agent, nor Coldwell Banker.

B. Pre-Trial Settlements

The Willises’ insurance carrier settled with the Chens prior to trial, as did Pacific Home Inspection. R.E.S.S. initially offered $75,000 to settle, and subsequently submitted statutory offers of $75,000 and $100,000. Nevertheless, the Chens refused to settle. Prudential settled with the Chens for $300,000 prior to the completion of voir dire.

C. Trial

Michael Casey, a Southern California home inspector retained by the Chens, testified that both R.E.S.S. and Pacific Home Inspection violated standards of practice for an ordinary, reasonable and prudent home inspector by failing to inspect the island counter. According to Casey, R.E.S.S. and Pacific would have realized that the counter was unattached and unstable, had they inspected it.

Casey testified that the standard of practice in California was codified by the standards of the California Real Estate Inspection Association (hereinafter “CREIA”) and the American Society of Home Inspectors (hereinafter “ASHI”). The written standards of both CREIA and ASHI were admitted into evidence. On cross-examination, however, Casey admitted that the accident precipitated a change in the inspection standards. The 1988 CREIA standards, in effect during the R.E.S.S. inspection, specifically excluded evaluating the fastenings of counter top cabinets supported by floors, ceilings or walls. Home inspections involved detecting only those problems that could be determined from a visual inspection.

Choi (dIb/a Presidential Realtors) settled for $40,000 during the presentation of the plaintiff’s case. R.E.S.S. became the “last man standing” and entered further settlement discussions, increasing its offer to $125,000. The trial judge thought that R.E.S.S. could settle for $350,000, but the Chens’ lowest demand was $550,000. Thus, the Chens rejected the $125,000 offer and the trial continued.

The plaintiffs’ engineering expert estimated that the counter weighed approximately 300 pounds. He prepared a videotape of the accident scene demonstrating the instability of the island counter. A device was used to measure the pounds of pressure necessary to topple the counter. Results indicated that only twenty-five to thirty pounds of lateral pressure on the counter overhang would cause the counter to become unstable and tip over.

Based on that evidence, the Chen family assumed that Lucy had grabbed on to the overhang portion of the island counter, pulling it over on top of her. The assumption had some merit in view of the child’s previous conduct. In fact, her parents had warned her not to climb or swing on the table at their rental home.

The final witness for R.E.S.S. was Bruce Frimerman, who testified that R.E.S.S. complied with the standard of practice for home inspectors. Frimen-nan stated that no provision of the inspection standards required R.E.S.S. to physically examine the island counter, since it was excluded under the standards. In fact, the home inspection standards were based upon a visual inspection of the premises.

The Chens concluded by asking the jury for $6 million, arguing that R.E.S.S. was negligent in failing to identify that the island counter was not attached, which was the proximate cause of Lucy’s death. The defense argued that R.E.S.S. complied with the standards of practice for home inspections. It also noted that the plaintiff’s home inspector, Pacific Home Inspection, had conducted the same inspection as that performed by R.E.S.S. The defense concluded that the fault lay entirely with the unknown designer/manufacturer of the island counter and with the Willises, who knew that the island counter was not attached. The jury found for R.E.S.S.

D. Chen and BAR 16.72

Despite the positive result, R.E.S.S. clearly found itself in a difficult position before the close of trial. The jury might focus on R.E.S.S. as the only remaining defendant and assign it a disproportionate amount of fault. To counteract this possibility, R.E.S.S. argued that it should be permitted to explicitly identify all of the original, settling defendants in the “other person” category of BAR 16.72.

To that end, the special verdict form submitted by R.E.S.S. asked the following:

Question No. 8: Assuming that 100% represents the total negligence and fault which was the cause of the plaintiffs’ damage, what percentage of this 100% is due to the contributory negligence of the plaintiff and what percentage of this 100% is due to the negligence and fault of the defendants and all other persons?

The trial judge rejected this proposal, permitting only Prudential, Choi (d/ b/a Presidential Realty) and R.E.S.S to be listed by name. As allowed by the trial judge, the remaining defendants could be identified only as “other person.” The court reasoned that the special verdict form was too prejudicial to the Chens, since it would require the jury to apportion fault among many parties. The defense countered that it was prejudicial to R.E.S.S., as the sole remaining defendant, to preclude a listing of all possible parties. Nevertheless, the court insisted that the fault of the Willises, Pacific Home Inspection, and the designer and manufacturer of the island counter could be argued under “other person.” In point of fact, however, California Civ. Code section 1431.2 and relevant case law, as enhanced by the policy reasons supporting comparative fault, authorize the explicit identification of all parties by name under BAJI 16.72. Indeed, such an identification is required to ensure an equitable distribution of fault.

IV.

ANALYSIS

A. BAR 16.72

BAR Jury Instruction 16.72, Part 8, provides as follows:

Question No. 8: Assuming that 100% represents the combined negligence [and fault] [and wrongful conduct], if any, (1) of the plaintiff, and (2) of the plaintiff’s employer, or agent, or employee other than the plaintiff, and (3) of the defendants [and (4) of other persons] whose [negligence] [and] [fault] [and] [wrongful conduct] contributed to plaintiff’s injury, what proportion, if any, of such combined [negligence] [and] [fault] [and] [wrongful conduct] is attributable to the following: (1) to the plaintiff, (2) to the plaintiff’s employer or agent of the employee, other than plaintiff, and (3) to [each] defendant [and (4) to such other persons]?

Answer:

As advanced at trial and discussed below, the policy reasons supporting an equitable distribution of fault require that defense counsel be permitted to explicitly identify: (1) defendants who are no longer involved in the action, or (2) parties who were not named by the plaintiff.

B. Special Verdict Form Identifying Parties@ and Non-Parties To Apportion Fault

A Special Verdict form should list and identify those parties who are not named in the action or who have settled with the plaintiff.

1. Case Illustration: Scott v. County of Los Angeles

In Scott v. County of Los Angeles,’O a child commenced an action against the county and a county social worker for injuries caused by the child’s foster parent. Ms. Bullock, the child’s foster parent, was not a named defendant in the action. Question 4 on the special verdict form, dealing with the apportionment of fault, stated: “(4) The percent of negligence of each defendant and of Bullock.””

The court of appeal held that the jury was properly instructed to apportion liability for the plaintiff’s injuries among the county, the social worker and Bullock, even though Bullock did not appear as a defendant.” The jury’s verdict found the County of Los Angeles 75% responsible, the supervising social worker 24% responsible, and the plaintiff’s grandmother I% responsible for the child’s injuries.” Such a division of responsibility, as between persons who are sued and those who are not, was approved by the California Supreme Court in DaFonte. Within the context of BAR 16.72, therefore, it is entirely proper to explicitly identify both parties and non-parties who may be liable for a plaintiff’s injuries.

2. Case Illustration: Bly-Magee v. Budget-Rent-A-Car Corp.

The case of Bly-Magee v. Budget-Rent-A-Car Corp.,` involved the conduct of the named defendants, Budget and Downey (its agent), the California Highway Patrol (“CHP”), and the Los Angeles County Sheriff. The plaintiff had been arrested because of the failure of Budget’s agent to register the rented automobile. The plaintiff commenced an action against Budget and the agent.

Budget submitted a special verdict form in which three non-party deputy sheriffs were identified so that the jury might indicate the percentage of fault allocated to any or all of them. The trial court, however, refused to allow Budget’s proposed verdict form. Instead, the court elected to use a form in which the non-parties were identified as “other person.” The jury allocated no fault to the non-party “other person,” and Budget claimed reversible error, citing confusion among the jurors. The court of appeal, however, found no error.

In Bly-Magee, Budget’s proposed special verdict form asked the following:

Assuming that 100% represents the total negligence which was the proximate cause of the plaintiff’s damage, what percentage of this 100% is due to the contributory negligence of the plaintiff and what percentage of this 100% is due to the negligence of the defendants and all other persons?

The court commented that Budget’s purported concern as to the phrase “other person” and its inability to sufficiently identify the non-parties to whom fault could be allocated would have been eliminated if Budget had emphasized this subject during closing argument. According to the court, trial counsel could highlight and explain the importance of fault allocation to the jury and even suggest an appropriate formula. Since the trial evidence included many references to the conduct of CHP and the sheriff’s department, and since descriptions of this conduct appeared in the complaints filed by Bly-Magee against the law enforcement agencies arising out of this same incident, Budget had several opportunities to focus the attention of the jury. Thus, the appellate court concluded that the verdict form used by the trial court was neither confusing nor ambiguous; it could not reasonably have misled the jury.

As noted in Chen, listing those defendants who have settled with the plaintiffs and are no longer part of the action would not confuse the jury nor cause the plaintiff any prejudice. Rather, the proposed form would focus the jury’s attention on the entire universe of tortfeasors.11 The decision in Bly-Magee confounds the equitable distribution of fault contemplated by Civ. Code section 1431.2, since the Code requires that fault be apportioned among all possible parties. As illustrated by the following case, however, Bly-Magee may not be the last word on this issue.

3. Case Illustration: Martin v. County of Los Angeles

Martin. v. County of Los Angeles” presents a more recent example of using a special verdict form to identify those parties who are no longer involved in the lawsuit. On September 16, 1987, Christine Maclntyre was killed when a runaway truck owned by Bourget Brothers Building Materials (hereinafter “Bourget”) and driven by Jose Martin crashed through an intersection. The Maclntyres commenced a wrongful death action against Martin, Bourget, Western Truck Service (which maintained Bourget’s vehicles), the County of Los Angeles, and the State of California. Western Truck Service settled with the MacIntyres prior to trial. Martin and Bourget settled with the MacIntyres after the trial commenced.

The special verdict form specifically inquired as follows: “Assuming that 100% percent represents the total causes of the plaintiffs[] damages, what percentage of this 100% is due to the actions or omissions of the County of Los Angeles, and/or the State of California, and all other persons?”” The verdict form contained appropriate blanks, allowing the jury to insert a percentage of fault as to: the county, the state, Bourget, Martin, Roy Kinslow, Lucio Gonzales, Miguel Macario, Alexander Sharpe, Western Brake, and other persons. The jury apportioned “cause” among these various individuals and entities as follows: the county, 13%; the state, 0%; Bourget, 39%; Martin, 48%; and all others, 0%.

This case implicitly authorizes the inclusion of those defendants no longer involved in the case (here Western Truck who settled prior to trial, and Martin and Bourget who settled after the trial commenced). Furthermore, individuals who are not sued as defendants may also be included on the special verdict form.

In light of Martin, the original special verdict form submitted by R.E.S.S. as Question No. 8 and reproduced in Part III D herein clearly represents a permissible defense strategy. Although Bly-Magee is not cited in Martin, it is interesting to note that listing all defendants and non-parties on the verdict form posed no difficulty for the trial or appellate court. Martin and Scott suggest a jurisprudential basis, and Civ. Code section 1431.2 provides the legislative basis, by which to explicitly list all parties by name on BAR 16.72.

B. Court’s Discretion to Specifically Identify Non-Parties or Absent Parties

The trial court clearly may allow a special verdict: “In all cases the court may direct the jury to find a Special Verdict in writing, upon all, or any of the issues.”” Given judicial discretion to resolve the issues in a case, including the proper apportionment of fault, a court should allow explicit party identification, regardless of whether a party is named by the plaintiff. The reasons are compelling: (1) Civil Code section 1431.2 mandates that all those responsible for a plaintiff’s injuries will be proportionately responsible for fault regardless of whether the tortfeasor is named as a party to the action; and (2) if the jury does not have the option of apportioning fault among all the tortfeasors, including those who have settled with the plaintiff, the remaining defendants may be assigned a greater share of fault for the plaintiff’s injuries.

The argument that a plaintiff’s rights are compromised by including all parties on a special verdict form is questionable. Ensuring that a specific defendant is apportioned his or her degree of fault does not undermine the total damages that may be awarded to the plaintiff. It does guarantee, quite fairly, that a defendant is assigned a more accurate and equitable amount of fault based on that defendant’s responsibility for the injury. Certainly, this is the fundamental purpose of Civ. Code section 1431.2. Further, the judicial admonition to consider the fault of all defendants may not be sufficient to ensure a fair apportionment of fault by the jury; the jury may still perceive a party’s absence from the verdict form as evidence of that party’s lesser responsibility.

C. BAR 16.72 and the Universal Defendant

BAR 16.72 specifically addresses the percentage of fault of all those parties who may be part of an action. Use of the term “other person” in BAR 16.72 is not limited in application only to those cases where the damage is caused by the named or known defendants, or those parties capable of being assigned liability for monetary damages.20 To the contrary, use of the term “other person” in BAR 16.72 expressly contemplates apportioning liability to all possible defendants, whether they are named by the plaintiff or not.

When a defendant is released prior to or during trial, the apportionment principle is potentially skewed because the jury may apportion a greater amount of fault to the remaining defendant(s). This consequence can be avoided if defense counsel lists by name all parties who may be at fault for the plaintiff’s injuries, even though a particular party may no longer be involved in the action.

Furthermore, if the California legislature intended that the term “other person” identify only named party-defendants, it would have specified the term “defendant” in BAR 16.72.” This reasoning was adopted in Florida, which has a similar statute requiring apportionment of each party’s fault.22 In Fabre v. Marin,23 the court stated that a statute requiring allocation of fault between parties unambiguously conveyed that “the only means of determining a party’s percentage of fault [was] to compare that party’s percentage to all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants. 1124 The Florida statute and BAR 16.72 similarly require that all parties be included in the special verdict. However, neither mandates that only named parties can be included on a special verdict form.

Similarly, Idaho has determined that the use of the word “party” in its comparative negligence statute applies to both parties and non-parties. In Pocatello Indus. Park Co. v. Steel West, Inc.,25 the court stated:

[The plaintiff] contends that the reference to the term ‘party’ in our comparative negligence statute implies that only parties may be included in the special verdict: “6-802. Verdict Giving Percentage Of Negligence Attributable To Each Party. The court may, and when requested by any party shall, direct the jury to find separate special verdicts determining the amount of damages and the percentage of negligence attributable to each party; and the court shall then reduce the amount of negligence attributable to the person recovering.”26

There is no extensive jurisprudential analysis of the words “other person” in California BAR 16.72. Thus, there is no specific authority permitting the explicit identification of those defendants who have settled prior to or during trial. However, Civ. Code section 1431.2, Scott, and MacIntyre clearly authorize the explicit identification of parties no longer involved in the action. As illustrated above, other jurisdictions likewise note that, for the purpose of distributing fault, the trier of fact is to consider the responsibility of all parties. Upon direct consideration of the issue in California, it will likely be determined that “other person” contemplates including both parties and non-parties.

Perhaps the most unequivocal statement addressing the inclusion of nonparties or absent parties in the apportionment of liability process is Colorado’s “non-party at fault” statute.” The statute provides:

[T]he finder of fact in a civil action may consider the degree or percentage of negligence or fault of a person not a party to the action, based upon evidence thereof, which shall be admissible, in determining the degree or percentage of negligence or fault of those persons who are parties to such action.28

Colorado’s non-party statute operates to permit a named defendant to reduce his or her share of liability by designating “non-parties” whose negligence or fault contributed to the plaintiff’s loss.29 If the trier of fact attributes any fault to the non-party, the defendant’s liability will be reduced by that percentage of fault, leaving the defendant liable only for his or her pro rata share of the judgment.” In Colorado, the fact-finder may consider the fault or negligence of the non-party in determining the percentage of the defendant’s fault.”

The Louisiana Code of Civil Procedure also specifically addresses apportionment of fault to non-parties: “(C) In cases to recover damages for injury. . the court… shall submit to the jury special written questions inquiring as to: If appropriate . . ., whether another party or nonparty, other than the person suffering injury, . . . was at fault, and, if so: … The degree of such fault, expressed in percentage.”32

This review of Idaho, Florida, Colorado and Louisiana law represents only a sampling of those jurisdictions that attempt to distribute fault to all parties, whether named as defendants or not. These jurisdictions have adopted a clearer posture than California as concerns the explicit designation of non-parties on a jury form for the purpose of apportioning fault.” However, BAR 16.72 is similar in that it attempts to distribute fault among all parties who are possibly responsible for a plaintiff’s damages.

V.

CONCLUSION

The apportionment of fault among all parties involved in causing an injury, including absent and settling tortfeasors, is mandated by the comparative fault principles clearly enunciated in California Code of Civil Procedure section 1431.2. BAR 16.72 and California Civ. Code 1431.2 are the vehicles by which negligent parties are identified and their liability limited to that damage for which they are singularly responsible. Nevertheless, California judicial authorities have not clearly endorsed the explicit identification of absent parties on a special verdict form.

An informed jury’s determination of the parties’ liabilities assures the viability of comparative fault and its relevant distribution of obligations for the payment of damages. Using BAR 16.72 to identify parties explicitly by name, rather than as “other person,” ensures an equitable apportionment of fault as envisioned by Civ. Code section 1431.2.

The underlying purpose for allocating fault among tortfeasors is to hold each tortfeasor severally liable only for that percentage of fault for which he or she was found to be responsible. In order to accomplish a more equitable distribution of fault, the named parties should not be penalized simply because a plaintiff chooses not to sue all parties or because some parties are no longer present in the action. The more equitable apportionment of fault in a comparative fault jurisdiction can occur if defense counsel explicitly identify all tortfeasors to an action under BAR 16.72.

‘Determination of comparative fault is allowed in 46 states. (See, e.g., discussion: Cheri D. Green & Michael K. Graves, Allocation of Fault: Joint Tortfeasors in Court and the Ones Who Should Be, 63 Miss. L.J. 647 (1994)).

‘California BAR Jury Instructions. (West 1994, Supp. 1998).

‘The term “absent” as used in this article has no legal significance. It simply refers to those defendants who settled with the plaintiff before or during trial. It also refers to those parties who may be responsible for a plaintiff’s injuries, but have not been identified or sued by the plaintiff.

40pponents may argue that explicit identification in BAJI 16.72 is unnecessary where party defendants have been referred to by counsel during the trial. Nevertheless, as argued in Section IV, the jury may think that because a party is not specifically listed on the special verdict form, it is not responsible for the alleged harm to plaintiff. In addition, by the time jury deliberations begin, the adage “out of sight, out of mind” is likely to apply.

‘CAL. CIVIL CODE 1431.2 (West 1998) [hereinafter Civ. Code].

‘[Emphasis added]. Perhaps the seminal case precipitating the shift away from joint and several liability is American Motorcycle Ass’n. v. Superior Court, 578 P.2d 899 (Cal. 1978). In that case the court stated:

“[H]aving already noted that under the comparative negligence doctrine a plaintiff’s recovery should be diminished only by that proportion which the plaintiff’s negligence bears to that of all tortfeasors, we think it only fair that a defendant who may be jointly and severally liable for all of the plaintiff’s damages be permitted to bring other concurrent tortfeasors into the suit.”

Id. at 917 (citation omitted).

7MillS V. MMM Carpets, Inc., 833 P.2d 642 (Cal. 1992); see also Leonard E. Eilbacher, Comparative Fault and the Nonparty Tortfeasor, 17 IND. L. REV. 903, 903 (1984): “The cornerstone principle of a comparative fault system is that each person who contributes to cause an injury must bear the burden of reparation for that injury in exact proportion to his share of the total fault which contributed to cause the injury.”

1828 P.2d 140 (Cal. 1992).

91d. at 146-47 (emphasis added).

“32 Cal. Rptr.2d 643 (1994), rev. denied. “Id. at 656 n.17 (emphasis added).

12 Id. at 656.

“The appellate court found that the jury was improperly instructed by the trial judge to the extent that BAR 16.00, meant for use in negligence cases, may have confused the jury. Id. at 654-55. The jury should have received BAR 16.12. Id. at 657 n.20. For purposes of this discussion, this case is presented to illustrate a situation in which a non-party was explicitly identified by name and assessed liability by the jury.

1129 Cal. Rptr.2d 330 (1994).

“Id. at 333 n.3.

16 See Evangelatos v. Superior Court, 753P.2d 585 (Cal. 1998); Civ. Code 1431.2. 1159 Cal. Rptr.2d 303 (1996).

1111d. at 310.

“CAL. CoDE Civ. PRoc. 625 (1998); see also Gettemy v. Star House Movers, 37 Cal. Rptr. 441,448 (1964).

2Presently, tortfeasors who have settled with the injured party and have been released from any further liability are not subject to liability for monetary damages assessed at trial. Although this principle is not disputed, such a settlement should not cause those parties who are still amenable to damages to be assessed a disproportionate amount of fault.

“Although Civ. Code 1431.2 uses the term “defendant”, DaFonte, 828 P.2d 140, has interpreted the section to include apportionment of liability among all parties, whether named by the plainitff or not. Id. at 145.

“FLA. STAT. ANN. 768.81(3) (1998). `623 So. 2d 1182 (Fla. 1993).

211d. at 1185 (emphasis added). 1621 P.2d 399 (Idaho 1980). 261d. at 403 nA

“CoLo. REv. STAT. 13-21-111.5 (West 1999). 28jd., 13-21-111.5(3)(a).

“Prior to the adoption of comparative fault, this type of distribution was not possible. Under the doctrine of joint and several liability a plaintiff could, of course, recover the entire amount of damages from any one of multiple tortfeasors. The result was inequitable for some defendants. The choice, however, was a policy decision; if some party must bear the risk of loss, a a

guilty tortfeasor should bear it rather than the innocent plaintiff.

“Similarly, BAR 16.72 was utilized during Chen to include the unknown manufacturer. See also ARIZ. REV. STAT. ANN. 12-2506(B) (West 1998) which provides that “ffln assessing percentages of fault the trier offact shall consider the fault of all persons who contributed to the alleged injury… regardless of whether the person was, or could have been, named as a party to the suit.” (Emphasis added).

31 13-21-111.5(2) (1997).

‘ILA. CODE CIV. PRoc. ANN. 1812(C)(2)(a)(1998) (emphasis added). “See Appendix A.

JACK DANmLs*

*The author gratefully acknowledges the assistance of Paul S. Brown, a former associate with Daniels, Fine, Israel & Schonbuch.

Jack Daniels is a founding partner of the Los Angeles firm of Daniels, Fine, Israel & Schonbuch. He received his undergraduate degree from Dartmouth College in 1959 and his J.D. from the University of Southern California in 1963. Mr. Daniels is a member of the Federation of Insurance & Corporate Counsel, Defense Research Institute, American Board of Trial Advocates, Association of Southern California Defense Counsel, and the Los Angeles County, California and American Bar Associations. He is an expert in the trial of catastrophic injury, products laibility, trucking industry defense, premises liability, insurance bad faith, and construction defect cases in addition to being afrequent lecturer and author.

Copyright Federation of Insurance & Corporate Counsel Fall 1999

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