Several Liability and the Effect of Settlement on Claim Reduction: Further Thoughts

David K. DeWolf, Several Liability  and the Effect of Settlement on Claim Reduction: Further Thoughts, 23 Gonz. L. Rev. 37 (1987)

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Thomas R. Harris’ recent articles have provided valuable commentary on two important facets of Washington’s treatment of tort claims against joint tortfeasors. Washington’s two attempts at reform legislation, the first in the product liability reform legislation of 1981 and the second in the Tort Reform Act of 1986, struggled with two distinct but related problems: (1) where the plaintiff is himself at fault, should he still be entitled to joint and several liability; and (2) where a plaintiff settles with one of two or more joint tortfeasors, how much should his claim against the remaining tortfeasors be reduced?

In both areas the later legislation provided a different answer from the earlier: (1) as to the question of joint and several liability, the legislature initially left intact the judiciary’s determination that the adoption of comparative negligence would not eliminate the plaintiff’s right to joint and several liability. But in the 1986 legislation joint and several liability is retained only when the plaintiff is not at fault, or when other circumstances (e.g., concert among the defendants, or certain environmental violations) make it appropriate.” (2) As to the question of the amount of claim reduction resulting from a settlement with one of two or more joint tortfeasors, the legislature again changed its mind: in the 1981 Act a settlement with one defendant reduced the plaintiff’s claim against remaining defendants only by the amount actually received by the plaintiff.’ In the 1986 Act the legislature provided that the plaintiff’s claim would be reduced by the percentage share of liability attributable to the settling parties. At first blush both changes may appear noncontroversial-indeed they may appear (as presumably they did to the legislature) to be significant improvements over the 1981 Act. However, each has significant drawbacks.

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David Kazemba J.D. Candidate 2014

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