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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Petrolane Incorporated v. Robles (03/23/2007) sp-6113
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| PETROLANE INCORPORATED | ) |
| d/b/a PETROLANE GAS, Soldotna, | ) |
| Alaska, | ) |
| ) Supreme Court No. S- 11042 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-94-9755 CI |
| ) | |
| GARY E. ROBLES, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6113 - March 23, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Eric J. Sanders, Judge.
Appearances: L.G. Berry, Robertson, Monagle &
Eastaugh, Anchorage, for Appellant. Laurel
J. Peterson, Law Office of Laurel J.
Peterson, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
EASTAUGH, Justice, with whom MATTHEWS, Justice, joins,
dissenting in part.
I. INTRODUCTION
Is a non-settling defendant tortfeasor entitled to
offset against his liability to the plaintiff the amount of a
settlement between the plaintiff and a settling defendant? We
conclude that under a pure several liability regime such as ours
the non-settling defendant is entitled to an offset only to the
extent of the settling defendants share of the damages.
A jury found Petrolane Incorporated and Gary Robles,
but not Shoreside Petroleum, liable for a propane tank explosion
that severely injured Robles and Robert Gannaway. We remanded
for a new trial on whether Shoreside could have been liable
under a negligence theory excluded by the trial court. The
remand required reconsideration of the comparative fault of all
of the parties, but maintained the first jurys findings as to
Petrolane, Robles, and Gannaway. Before the first trial,
Gannaway and Petrolane had settled: In return for a cash payment
from Petrolane, Gannaway assigned to Petrolane ninety percent of
any award he might obtain from Robles. After the second trial,
the superior court reduced Robless liability to Gannaway by the
full settlement amount. Because under a several liability regime
such as ours Robles is entitled to an offset only to the extent
of Petrolanes share of the damages, we reverse on this issue.
Petrolane also appeals the second trial courts decision to
instruct the jury that Petrolane and Robles must be at least one
percent liable. Because we find no error in this instruction, we
affirm on this issue.
II. FACTS AND PROCEEDINGS
The factual background of this case was set out in our
opinion in Robles v. Shoreside Petroleum, Inc.1 In brief, Gary
Robles and his customer Robert Gannaway were injured in October
1993 when Gannaways old and corroded propane tank that Robles was
filling exploded at the Tesoro station leased and operated by
Robles. Gannaway sued Robles, Shoreside Petroleum, Inc., the
propane supplier, and Petrolane Incorporated, Shoresides
wholesale propane distributor; Robles sued Shoreside and
Petrolane. Before the first trial, Petrolane and Shoreside
settled with Gannaway, paying him $400,000 in exchange for
releasing both companies from all claims and assigning them
ninety percent of his claims against Robles.
The first jury found Petrolane and Robles equally
negligent in causing the accident and allocated half the
liability for the accident to each, and the superior court
entered judgment accordingly: Petrolane and Robles were each
liable for fifty percent of Gannaways damages of $358,379.73 and
Petrolane was liable to Robles for half of his damages of
$871,216.19. Superior Court Judge Michael Wolvertons judgment
incorporated Gannaways pre-trial settlement, offsetting Robless
award against Petrolane by Gannaways award against Robles, and
ordering Petrolane to pay Robles the difference.2
We reversed and remanded for retrial on the issue of
Shoresides negligent failure to warn and on the related issues of
causation and comparative fault,3 but noted that there was no
reason to disturb the jurys determination on the issue of overall
damages.4 This outcome also made it unnecessary for us to
address the superior courts incorporation of the Gannaway
settlement into the final judgment.5
Before the second trial, Petrolane and Shoreside
renewed their argument that their settlement with Gannaway made
them assignees of his claims, and that they
accordingly were entitled to reduce the amount of damages they
owed Robles by the amount Robles was liable to Gannaway. Robles
in turn asserted that he was entitled to reduce his liability to
Gannaway by the amount Gannaway received from the other
defendants in his settlement meaning he effectively owed no
damages to Gannaway. Superior Court Judge Eric Sanders, to whom
the case was assigned on remand, interpreted language from our
decision in Universal Motors, Inc. v. Neary6 as requiring prior
settlements to reduce a plaintiffs trial verdict by the full
amount of the settlements rather than reducing it by the
percentage of fault attributed to settling tortfeasors. Judge
Sanders, considering the outcome unfair, reluctantly concluded
that Neary compelled him to agree with Robless position, even if
the decision would, in all likelihood, be reversed.
Judge Sanders informed the second jury in Instruction
No. 7 of the first jurys determinations that both Petrolane and
Robles were negligent, that their negligence was a cause of the
harm, and that Shoreside negligently trained Robles. The jury
was told the court (as opposed to another jury) had made these
determinations and was instructed not to reexamine these issues
or discuss why the court decided them.
While the second jury concluded that Shoreside,
Petrolane, and Robles were all negligent, it found that only
Petrolane and Robless negligence was a legal cause of the harm.
The jury attributed 56.25% of the responsibility to Robles, and
43.75% of the responsibility to Petrolane.
Petrolane appeals the superior courts decision that
full offset was required and the superior courts Instruction No.
7.
III. STANDARD OF REVIEW
We review questions of law and a trial courts
application of law to fact de novo, adopting the rule of law most
persuasive in light of precedent, reason, and policy.7 We also
review de novo jury instructions to which timely objection was
made.8
IV. DISCUSSION
A. The Superior Court Erred in Applying a Full Offset.
Petrolanes first argument on appeal is that the
superior court erred in ruling
that under AS 09.17.080(d) the pre-trial settlement between
Gannaway, Shoreside, and Petrolane extinguished Robless
obligation to pay his proportion of Gannaways damages to
Petrolane following the second trial. Alaska Statute
09.17.080(d) states: The court shall enter judgment against each
party liable on the basis of several liability in accordance with
that partys percentage of fault.9
1. Robles is entitled to a proportionate share offset
for Petrolanes settlement with Gannaway.
Upon remand, Judge Sanders raised the issue of whether
Petrolane and Shoreside, having received an assignment from
Robert Gannaway for money Gary Robles owes him, are entitled to a
credit for what they may be required to pay Robles as a result of
this courts eventual judgment.10 The court concluded that Robles
owes nothing for Gannaways damages despite a jury finding of
fault against Robles, because our Neary decision supports
Robless argument that he is entitled to offset amounts Gannaway
received from other defendants. The court noted that this result
was inconsistent with the principles behind Alaskas several
liability statute, but believed that Neary required this outcome.
Petrolane offers five reasons why the superior courts
holding was erroneous, arguing that (1) the superior courts
decision is based only on Neary dicta, and that, as the superior
court suggested, Neary was distinguishable because it involved
the threat of double recovery in multiple lawsuits; (2) the
superior courts decision contradicts the plain language of AS
09.17.080(d); (3) the decision runs against case law in other
jurisdictions and the near-universal rule that [full] credit [is]
inapplicable in jurisdictions in which joint-and-several
liability ha[s] been modified or abolished; (4) the voters have
indicated a clear preference for individual defendants to be
liable for their proportion of fault; and (5) allowing non-
settling tortfeasors to receive the benefit of a favorable
settlement negotiated by the plaintiff creates a strong
disincentive to settle cases.
Robles replies that past cases, including Neary,
require that payment received by a plaintiff must be deducted by
the damages recoverable from other tortfeasors so that plaintiffs
may not collect more than the jurys final determination of their
damages. However, the nature of an offset for a prior settlement
under this version of subsection .080(d) is a question of first
impression, and Robles fails to squarely address whether full
offsets are appropriate under pure several liability. As
explained below, we agree with Petrolane and adopt the
proportionate share approach for offsets of prior settlements in
single-suit, multi-defendant cases.
Over time Alaska has moved from a tort regime premised
on joint and several liability, where a marginally liable
defendant could end up paying for the entire harm, towards a
system focused on linking a defendants liability to that
defendants comparative share of the harm. As we have noted:
[A]t common law, and in Alaska before 1970,
joint tortfeasors were jointly and severally
liable and did not have a right of
contribution against each other. The
legislature granted joint tortfeasors the
right of contribution in 1970 by enacting the
Alaska Uniform Contribution Among
Tortfeasors Act. That act explicitly
precluded intentional tortfeasors from
seeking contribution. Tort reform
legislation in 1986 amended the contribution
act, and required that the liability of joint
tortfeasors be determined by each tortfeasors
percentage of fault.[11]
The 1986 legislation was in turn amended in 1988 when
the voters passed the Tort Reform Ballot Initiative (initiative),
which moved Alaska from modified joint and several liability to
pure several liability.12 The initiative amended AS 09.17.080(d)
such that each party [would be] liable only for damages equal to
his or her share of fault and repealed statutory sections
concerning contribution between tortfeasors.13 The initiative was
designed to ensur[e] that people are held accountable for
injuries or damages they cause, and thus continued the general
trend towards increasing emphasis on comparative fault.14
Granting Robles a full offset that would eliminate his
liability would require us to ignore the development of our law
and the central purpose of the initiative. The voters did not
intend for tortfeasors like Robles, who have been found liable
for a portion of a plaintiffs harm, to escape paying for their
share of the harm because of another defendants settlement with
the plaintiff. As the statement in support of the initiative
noted, [i]f Ballot Measure 2 is passed and you do something
wrong, you pay for it.15 Because allowing Robles a full offset
would run counter to the intent behind the initiative, we reject
his argument.
Robles cites Bohna v. Hughes, Thorsness, Gantz, Powell
& Brundin16 and Navistar International Transport Corp. v. Pleasant17
for the proposition that a [defendant] is entitled to offset the
amount of any settlement against the jury verdict in order to
avoid double recovery, and consideration received [in a
settlement agreement] operates as payment pro tanto upon any
judgment obtained against [other tortfeasors]. He argues that
these cases were decided on the basis of our opposition to double
recovery. However, these cases are distinguishable: Bohna and
Navistar were decided under joint and several liability regimes
that included statutory provisions requiring full offset.18
Moreover, the rule against double recovery is grounded in joint
and several liability. In that context, the plaintiff has
overlapping remedies, which is to say that he or she can be
compensated by any liable defendant, and the rule is necessary to
ensure that such overlapping remedies . . . must not become
multiple remedies.19 But since the pure several liability regime
enacted by initiative in 1988 repealed the express availability
of full offsets and because a defendants liability under the 1988
law was limited by comparative fault, there is no reason to allow
a non-settling defendant full offset under the 1988 law. As the
Texas Supreme Court noted:
[Under several liability] [t]he reasoning
behind the one recovery rule no longer
applies . . . . Because each defendants
share can now be determined, it logically
follows that each may settle just that
portion of the plaintiffs suit. The
settlement does not affect the amount of harm
caused by the remaining defendants and
likewise should not affect their liability.[20
]
The cases Robles relies upon are grounded in joint and
several liability, and we see no reason (nor has Robles offered
any) to apply a rule permitting full offset in the several
liability context.21 Instead, we join the United States Supreme
Court,22 the majority of other jurisdictions23 and the Restatement
(Third) of Torts24 in adopting the proportionate share rule.
Under this approach non-settling defendants are entitled to
offset the plaintiffs damages in proportion to settling parties
comparative fault. Thus, Robles is entitled to an offset for
only Petrolanes 43.75% share of the harm, and therefore remains
liable for 56.25% of Gannaways damages. Petrolane may deduct
ninety percent of this amount from the monies it owes to Robles
according to its assignment agreement with Gannaway.
While this approach recognizes the possibility that a
plaintiff will secure total recoveries in excess of her damages
as later determined by a jury (in a trial without all defendants
present), there is no injustice in this result because the
plaintiff bears the reciprocal risk of settling with a defendant
for less than that defendants comparative share of the harm as
later determined by a jury, and may therefore end up collecting
less than her damages as determined by the jury. To conclude
otherwise would lead to significant unfairness because it would
grant a non-settling defendant the benefit of a bargain for which
he bore no risk. As the Restatement (Third) of Torts explains:
[A] plaintiff may recover more than the
damages determined by the fact finder. That
occurs when the plaintiff settles with one
defendant for an amount greater than the
settling tortfeasors comparative share of the
plaintiffs damages. This result is
appropriate; since the plaintiff bears the
risk of an inadequate settlement (in which
case the plaintiff will recover less than the
damages determined by the fact finder), the
plaintiff should also obtain the benefit of a
favorable settlement. Limiting the
plaintiffs recovery to the damages determined
by the fact finder would provide an
unjustified windfall to the nonsettling
defendant.[25]
Indeed, allowing full offsets under several liability
would discourage settlement because a rational defendant would
delay resolving the case in the hopes that another defendants
settlement would reduce or eliminate his liability.26 Our strong
policy favoring settlement as a positive method of case
resolution27 is a further reason to favor proportionate (pro rata)
offset.
This conclusion is also supported by the overall
uncertainty associated with settlement values. While the full
offset rule assumes a direct relationship between settlement
value and a plaintiffs actual damages, in practice settlement
amounts reflect complicated and opaque considerations such as
settling parties respective risk propensities, the value of peace
from further litigation, and a settling partys immediate
financial situation. The value of a settlement is not perfectly
related to a plaintiffs actual damages indeed, the relationship
may be only a rough approximation and thus there is no
inconsistency or unfairness in allowing a plaintiff to recover
more or less through partial settlement than the plaintiff could
receive at trial.28
Moreover, we are unconvinced that Universal Motors,
Inc. v. Neary29 requires a full offset in this case. The superior
court read Neary as entitling Robles to offset [the] amounts
Gannaway received from other defendants. Universal Motors, the
appellant in Neary, argued that inconsistent adjudications would
occur and plaintiffs might receive double recovery if we did not
adopt the rule that a plaintiff may only bring one action in tort
to obtain relief from all possible tortfeasors.30 Specifically,
Universal Motors offered a hypothetical situation in which a
Plaintiff, P, sued one defendant, D1, in one action and the jury
allocated fault evenly between them.31 If P then sued a second
defendant, D2, Universal Motors contended that the jury could
allocate fifty percent of fault to D2.32 Consequently, Universal
Motors maintained that P could receive full compensation for his
injuries even though two juries had found him fifty percent at
fault.33 The superior court in this case based its interpretation
of Neary on our response to this hypothetical. We rejected
Universal Motorss claim that the appellant could obtain double
recovery because we held that D2 was entitled to offset his
liability against D1s liability.34 We thus observed that P could
obtain no more than the jury awarded in the first trial.35 But
Neary does not control this case, for it concerned the one-
action rule, which requires a plaintiff to join all defendants in
one action. We discussed the possibility of an offset in
response to the defendants argument that, without a one-action
rule, a plaintiff could separately sue multiple defendants,
allowing plaintiff to collect more than full damages from
defendants in separate cases; we allowed a full offset to prevent
such an outcome. That analysis is not applicable where, as here,
the case involves multiple defendants in the same suit. Both
Robles and Petrolane were included in the same action and the
jury made findings regarding the comparative fault of all
parties. Consequently, Neary neither controls this case nor
supports application of a full offset.
Indeed, our Neary discussion was not inconsistent with
the proportionate share approach. In Neary we observed that D1
would pay for more than its comparative share of the harm and D2
would pay for less than its share.36 To address this problem we
noted that D1 might be able to secure common law contribution,
and we cited to the Restatement section which recommends allowing
contribution where all necessary defendants were not joined in
the initial action.37 Although we did not pass judgment about
whether such a remedy was then available in Alaska, we later
recognized that it was available because it furthered the goal of
apportioning tort losses in accordance with each responsible
persons percentage of fault.38 This common law remedy thus
comports with the proportionate share approach. By suing
defendants in two separate actions, the hypothetical plaintiff
would undermine the relationship between a partys share of the
harm and its actual payments, and contribution would allow a
defendant who overpaid to ensure that he does not end up paying
for more than his share of the harm. Where, however, the
comparative fault of all parties has been jointly determined,
there is no danger of parties over- or under-paying, and thus
neither offsets nor a contribution remedy would be appropriate.
We reject the dissents reliance on AS 09.17.080(c) a
statute not cited or relied upon by the appellee in this case
and the dissents interpretation of that statute. As of October
6, 1993, when the accident occurred, AS 09.17.080(c) provided:
The court shall determine the award of
damages to each claimant in accordance with
the findings, subject to a reduction under AS
09.16.040, and enter judgment against each
party liable. The court shall also determine
and state in the judgment each partys
equitable share of the obligation to each
claimant in accordance with the respective
percentages of fault.
But in 1988 the voters by initiative had repealed AS 09.16,
including AS 09.16.040. This case requires us to determine what
effect, if any, we should give to the repealed statute.
In Benner v. Wichman,39 we held that we were not
prohibited from examining the repealed statute in interpreting a
related statute where nothing in the related statute suggests an
intent to alter the provisions applicability.40 In the present
case, however, the related statute AS 09.17.080 contains
subsection (d) which, as shown above, directly conflicts with the
notion of fully offsetting a non-settling defendants liability by
a previous settlement by a co-defendant.
We are therefore not persuaded that former AS
09.17.080(c)s reference to AS 09.16.040 provides support for the
dissents position. The dissent appears to construe the subject
to language of .080(c) as an invariable command to reduce under
AS 09.16.040, regardless of that sections repeal. In effect,
this interpretation would require us to read .080(c) as thought
it said that the court must determine the award of damages,
subject [it] to a reduction under AS 09.16.040, and enter
judgment. But as actually adopted, the subject to phrase omits
the it. As we understand the phrase, subject to a reduction
under AS 09.16.040 simply means that a judgment entered under
.080(c) will remain subject to reduction under AS 09.16.040
provided that the statue applies in other words, the phrase just
reserves the right to apply .040 to the extent that it applies
by its own terms.41 Under this view of the phrase, .080(c) would
not require a reduction under AS 09.16.040 in this case: the
reduction statute does not apply by its own terms here, because
the settlement in this case was reached after the statute was
repealed.
It might seem tempting to reject this interpretation
because it appears to lead to a strange result: why would the
electorate have wanted to reserve the right to apply a law it had
just repealed? One explanation might be simple drafting error on
the part of the initiatives sponsors. But another may lie in
the timing of the repeal of .040 and the adoption of .080(c).
Although .080(c) was adopted at the same time as .040
was repealed, the effective date of .040's repeal does not
necessarily establish the date when the repealed law would cease
to affect cases to which the new .080(c) applied. Since
releases and covenants are contractual, the meaning and scope of
a given settlement agreement would be determined by the law in
effect when it was reached; conversely, later changes in the law
governing settlements would not alter the existing settlements
terms. Thus, despite its repeal, AS 09.16.040's requirements
would continue to control any settlements reached before that
statutes repeal in actions filed after the repeal.
On the other hand, .080(c)s new liability provisions
would apply prospectively to new claims accruing after enactment.
Under the discovery rule, claims for the same injury can accrue
at different times against different tortfeasors. Thus, it seems
predictable that in some cases accruing against particular
tortfeasors after .080(c)s enactment, there would already be pre-
enactment settlements for the same injury involving other
tortfeasors against whom claims had accrued at an earlier point.
Because .040's reduction requirement would continue to apply to
these settlements, the drafters of .080(c) could reasonably have
decided to include language in .080(c) to cover these situations
by specifying that a judgment under .080(c) would remain subject
to a reduction under AS 09.16.040 if that statute applied to the
case.
This rationale might also provide a plausible
explanation for the otherwise unexplained repeal of .080(c)s
subject to provision in 1997. The number of potential new claims
for injuries involving pre-1989 settlements would inevitably
dwindle and approach a vanishing point over time. Thus, by 1997
it simply might have become clear that .080(c)s reference to
former .040 was just a vestige and served no further purpose.
Alternatively, as noted above, .080(c)s reference to
the repealed .040 may have been a drafting mistake by the
sponsors of the 1988 initiative. And the legislative repeal in
1997 of .080(c)s subject to provision may have simply reflected
the legislatures desire to rectify this mistake. In either
event, we conclude that AS 09.17.080(c)s reference to AS
09.16.040 does not compel the result reached by the dissent. We
likewise reject the dissents claim that AS 09.17.080(c)s
reference to the repealed AS 09.16.040 was critical language that
dictates the result favored by the dissent.
In sum, we do not think the voters intended to allow
non-settling defendants to escape paying for harms that they
caused. While we had previously indicated that full offsets were
appropriate in the context of multiple actions and joint
liability, rote application of the rule in the pure several
liability context would discourage settlements and lead to
substantial unfairness. Proportionate share offsets are logical
incidents of several liability, and in recognizing them we simply
adopt the most efficient and well-accepted solution.
2. Petrolane did not waive any legal arguments by
failing to make an offer of proof or otherwise
present the second trial court with evidence of
Gannaways claims.
Robles argues, even assuming that Petrolanes legal
arguments are meritorious, that Petrolane has waived them because
(1) Petrolane and Shoreside presented no evidence concerning
[Robless] liability for Gannaways injuries, specifically by
failing to file a motion in limine, present an offer of proof, or
adduce evidence at the remand trial concerning Gannaways claims;
(2) this in turn precluded Robles from presenting evidence that
would negate his potential liability; and (3) there was no
judgment after the remand that addresses liability on the part of
Robles for Gannaways injuries.
In support of his argument, Robles quotes from our
decision in Agostinho v. Fairbanks Clinic Partnership42 where we
stated that a party waives its right to challenge the exclusion
of evidence unless an offer of proof as to the substance of the
evidence is made at the time the evidence is excluded.43 He
argues that because no offer of proof was made, appellate review
is precluded because there is no showing that it was prejudicial
to refuse to admit the excluded evidence.
The passage cited by Robles clearly indicates that an
offer of proof is needed to challenge the exclusion of evidence.
It is not, however, needed to prevent waiver of a legal argument.
Having received an assignment from Gannaway for his claims
against Robles, Petrolane asked the superior court to credit the
assignment against its liability to Robles. The superior court
declined to grant Petrolane a credit because it read Neary as
requiring a full offset; it reasoned that as Petrolane had
already paid Gannaway more than the first jurys determination of
his damages, neither Gannaway nor Petrolane as his assignee
could collect from Robles. The court did not exclude evidence
it rejected a legal argument. Furthermore, the evidence that was
related to this legal issue Gannaways settlement with and
assignment of claims to Petrolane was uncontroverted and part of
the record. Accordingly, Robless argument regarding offers of
proof is irrelevant to the disposition of this case.
Robles next argues that Petrolanes claim of a credit
for Gannaways assignment required relitigating Robless (and other
parties) liability for Gannaways injuries. He notes that he was
prepared to go forward on the issue of his liability to Gannaway
and that he was prejudiced by his inability to present relevant
evidence. Robles is incorrect. As he himself notes, the first
jury found that he was fifty percent liable for Gannaways
injuries, and that Gannaway had not been negligent at all. While
we remanded to allow a second jury to consider Shoresides
potential liability and its potential effect on the comparative
fault of the parties, we did not disturb the findings concerning
Gannaways non-negligence or the amount of his damages and, as
explained in Part IV.B., the remand order did not require
reconsideration of the fact that Robles and Petrolane were both
partially liable.44 Robles is thus precluded from relitigating
his liability to Gannaway.45 His waiver argument is therefore
meritless.
B. The Superior Court Correctly Instructed the Jury on
Petrolane and Robless Negligence and Liability.
We concluded our opinion in Robles v. Shoreside
Petroleum, Inc. by remanding the issue of Shoresides negligent
failure to warn and on related issues of causation and
comparative fault.46 Before the second trial, Petrolane moved in
limine to prohibit instructions, argument, and evidence related
to the jury findings in the first trial. The superior court
refused to grant Petrolanes request. The court instructed the
jury before trial that it had already determined that (1)
Petrolane negligently trained Gary Robles and that its negligence
was a legal cause of his harm; (2) Gary Robles was negligent and
that his negligence was a legal cause of his own harm; (3)
Shoreside negligently trained Gary Robles; and (4) Petrolane and
Gary Robles were at least one percent at fault. The instructions
directed the jury not to reexamine these issues or discuss why
the court already decided them.
Petrolane maintains that the courts jury instructions
and comments created two categories of defendants from the outset
one defendant (Petrolane) obviously at fault . . . and one
(Shoreside) where the judge could not decide whether any fault
existed. According to Petrolane, [t]his obvious dichotomy
prejudiced Petrolane, by ma[king] it less likely that the jury
would find Shoreside at fault, by dramatically alter[ing] the
nature of the proof presented by the parties, and by rendering
the jury unable to truly apportion fault in the manner intended
by statute and by this Court. Petrolane argues that this case
should be remanded and the trial court instructed to empanel a
new jury to reconsider comparative fault.
Allegedly erroneous jury instructions are grounds for
reversal only if they were objected to and caused prejudice.47
The party appealing a trial courts decision to give or refuse to
give certain jury instructions has the burden of showing that the
instructions caused prejudicial error.48 An error is prejudicial
if we determine the verdict would have been different had the
erroneous instruction not been given.49 We determine whether an
error is prejudicial by placing ourselves in the jurors position
and considering whether the erroneous instructions probably
affected their judgment.50
Petrolane does not claim that the court prevented it
from presenting evidence demonstrating Robless and Shoresides
comparatively high portion of fault and its own lack of fault.
Rather, Petrolane complains that the jury never had an
opportunity to assess the comparative fault of the parties,
because the trial court periodically informed and instructed the
jury that the fault of Petrolane and Robles were established
facts, and that it need only determine whether Shoreside was at
fault. Petrolane insists that [i]n determining comparative
fault, a jury must be presented with all relevant liability
evidence, and must draw its own conclusions as to negligence and
causation on the part of each of the parties. Therefore,
Petrolane continues, there was no reason to inform the second
jury of the bare conclusions of the first jury. We disagree.
The negligence and fault of Petrolane and Robles were
established by the first jury.51 This court affirmed the first
jurys findings of Petrolanes negligence, Robless negligence, and
their combined legal causation of the accident. We remanded only
for determination of Shoresides possible negligence and the
comparative fault of all parties in light of this new
determination.52 Thus, under the doctrine of law of the case, the
trial court properly granted preclusive effect to these findings.
This doctrine prohibits the reconsideration of issues which have
been adjudicated in a previous appeal in the same case. Even
issues not explicitly discussed in the first appellate opinion,
but directly involved with or necessarily inhering in the
decision will be considered the law of the case.53 Thus,
previously adjudicated issues may be reconsidered only in the
face of exceptional circumstances presenting a clear error
constituting a manifest injustice.54 The reasons for this
doctrine include (1) avoidance of indefinite litigations; (2)
consistency of results in same litigation; (3) essential fairness
between the parties; and (4) judicial efficiency55 in short, all
of the concerns raised by Petrolanes argument. Had its
deliberations not been limited by the issues properly decided in
the original verdict, the second jury might easily have returned
a verdict contradictory to the portions of the first verdict that
this court already upheld, bogging down courts and litigants in a
confusing and contradictory set of verdicts.
Petrolane concedes that law of the case is applicable
here, but argues that the doctrine has no effect. Petrolane
interprets the language of our earlier remand to require
determination of not only the issues of Shoresides negligence and
causation between its negligence and the harm and the comparative
fault of the parties, but also retrial on the negligence of all
of the parties. We reject this interpretation. The error in the
first trial stemmed from the courts refusal to allow presentation
of a particular theory of negligent conduct by Shoreside.56 Our
remand required that the superior court allow the jury to
determine the comparative fault of the parties in light of this
additional theory of negligence.57 We did not require the issue
of Petrolanes and Robless negligence to be relitigated because
the determination of their negligence was not hindered by the
failure to consider all the other theories of Shoresides
negligence.58
We also reject Petrolanes argument that the jury
instructions influenced the jury by creating two categories of
defendants for two reasons. First, the record indicates that the
superior court sufficiently instructed the jury not to draw any
inferences from the fact that the negligence of Robles and
Petrolane had already been determined. The superior courts jury
instructions stated clearly that, aside from the facts listed
above, it had not intended to give the jury any direction or
instruction on how it should determine any partys actual
percentage of fault in this case. The superior court acted in
accordance with our remand, telling jurors that what youre going
to be hearing during the course of this trial is the parties
presenting evidence as to who did what to enable you as jurors to
decide what percentage of fault should be apportioned to what
party. The court explained that [i]n determining the percentages
of fault, the jury should consider the nature of the conduct of
each person at fault. The judge went on to note that although
the court has already determined . . . that Petrolane was
negligent, I havent determined the extent or the degree of the
negligence and the jury may decide it was one percent or fifteen
or fifty or seventy-five or ninety-nine percent. Finally, the
court cautioned the jury: dont read anything in that somehow the
judge must be suggesting what the answer is.
Second, Petrolane only offers one case in support of
its argument: Kava v. American Honda Motor Co., Inc.59 In Kava a
jury found for the plaintiff on a products liability claim, and
determined total damages and apportioned liability between the
plaintiff and defendant, but deadlocked on the plaintiffs
negligence claim.60 We remanded the negligence claim and required
the second jury to reassess comparative fault because the
original jury verdict form did not distinguish between the
products liability and negligence claims.61 Petrolane asserts
that Kava established that instructions referring to the partial
conclusions drawn by another jury should have been rejected.
However, in Kava we required comparative fault be retried because
we found good reason to believe that jurors would have been
likely to award greater comparative fault to the defendants if
liability had been determined under negligence as opposed to
under strict liability.62 Nowhere does Kava state that in order
to apportion fault on a remanded claim, the jury must retry the
liability of other parties as well. A new determination that
Shoreside was liable would have altered the percentage of fault
borne by each party, but it would not have altered the simple
fact of Petrolane and Robless liability for their already-
established negligence. Thus, we do not read Kavas conclusion
that a new trial will be necessary on the issue of comparative
fault,63 as indicating that the basic liability of all parties, as
opposed to simply Shoreside, had to be relitigated.64
In light of these considerations, we hold that
Petrolane has not met its burden of showing that it was
prejudiced by the information and instructions the superior court
furnished to the jury.
V. CONCLUSION
Because we hold that a proportionate share offset is
appropriate under several liability, we REVERSE and REMAND the
issue of Robless offset for Petrolanes prior settlement with
Gannaway for further proceedings in accordance with this opinion.
Because we hold that the superior court properly instructed the
jury about Petrolane and Shoresides negligence, we AFFIRM on this
issue.
EASTAUGH, Justice, with whom MATTHEWS, Justice, joins,
dissenting.
I respectfully dissent from that part of the courts
opinion that declines to subtract the amount received in the
prior settlement from the damages award for this 1993 accident.
The result the court reaches is contrary to the text of the
statute that controls, AS 09.17.080(c) as it read in 1993. It is
also contrary to our decisions that determine how we apply that
statute and to the principle of compensation that has governed a
negligent tortfeasors liability in Alaska.
1. Introduction. Our disagreement arises because AS
09.17.080(c) continued to include the words subject to a
reduction under AS 09.16.040 after the 1988 initiative eliminated
joint liability by amending AS 09.17.080(d). That initiative did
not delete those words or otherwise amend subsection .080(c),
even though it repealed AS 09.16.
The courts opinion concludes that former AS
09.17.080(c) does not apply here and that the proportionate share
rule (or pure several liability regime) embodied in AS
09.17.080(d) does.1 This conclusion is problematic for several
reasons.
Because the two subsections coexisted side-by-side when
this claim arose in 1993, the court must reconcile them and the
principles they embody if it can. For reasons I discuss below,
it can. The court should therefore apply AS 09.17.080(c) and
subtract the settlement from the award.
A more subtle problem may underlie the courts opinion.
It does not seem to hold that subsection .080(d) directly
applies; it instead seems to resolve the reduction dispute by
choosing to adopt the principle of pure several liability
embodied in subsection .080(d) after the 1988 initiative became
effective.2 Because the express words of former AS
09.17.080(c) apply here, the only justification for not applying
them must be that a different subsection applies more directly or
that the subject to a reduction language has been at least
implicitly repealed or amended. The court does not clearly
engage in the analysis needed to follow either approach. If
subsection .080(c) applies, we do not have the option of choosing
to adopt, even by analogy to a principle expressed in a different
statute, a different method of offsetting the prior settlement.
The facts are complex, but they can be simplified to
this model: Two negligent tortfeasors caused a person to suffer
personal injury in 1993. The plaintiff settled with one
tortfeasor for $80,000 and proceeded to trial against the second.
At trial the jury found for the plaintiff, found plaintiffs
compensatory damages to be $100,000, found the settling
tortfeasor forty percent responsible for the accident, and found
the nonsettling tortfeasor sixty percent responsible.3 These
findings resulted in a jury verdict against the nonsettling
tortfeasor for sixty percent of $100,000. Were it not for the
prior settlement, the liability of the nonsettling tortfeasor per
AS 09.17.080(d) would have been $60,000.
The question here is whether the nonsettling
tortfeasors liability may exceed the difference between the jurys
award and the amount plaintiff received in settlement from the
settling tortfeasor. The plain words of the controlling statute
former AS 09.17.080(c) answer that question. The answer is No.
But per todays opinion the answer is Yes. Invoking the principle
of several-only liability and the 1988 amendment to AS 09.17.080,
it holds that the award must be reduced pro rata (by the
percentage of responsibility the jury allocated to the settling
tortfeasor), and not pro tanto(by the amount of the prior
settlement).
The opinion relies on principles and policy choices
that were not reflected in the text of AS 09.17.080(c) as it
existed in 1993. In my view, the text of that subsection as it
then read and our pertinent case law preclude the choice the
court makes here.
The court correctly observes that the appellee has not
cited subsection .080(c),4 but we must reach the issue anyway.
The issue is inherent because we are being asked to apply
subsection .080(d), and its application turns on the
applicability of a co-existing statutory neighbor of which we are
aware.5 Also, the appellee argues that subsection .080(d) does
not apply, argues that the settlement must be subtracted from the
award, invokes the tort principle (avoidance of double recovery)
underlying subsection .080(c), and cites our offset decisions in
support. At least one of those cases applies AS 09.16.040,6 the
reduction statute to which subsection .080(c) expressly referred
until 1997. We must therefore decide whether AS 09.17.080(c)
applies.
2. The Applicable Statutory Scheme. Alaska Statute
09.17.080 concerns apportionment of damages. As of October 6,
1993, when the accident occurred, section .080 provided:
Apportionment of Damages. (a) In all
actions involving fault of more than one
party to the action, including third-party
defendants and persons who have been released
under AS 09.16.040, the court, unless
otherwise agreed by all parties, shall
instruct the jury to answer special
interrogatories or, if there is no jury,
shall make findings, indicating
(1) the amount of damages each claimant
would be entitled to recover if
contributory fault is disregarded;
and
(2) the percentage of the total fault
of all of the parties to each
claim that is allocated to each
claimant, defendant, third-party defendant,
and person who has been released from
liability under AS 09.16.040.
(b) In determining the percentages of fault,
the trier of fact shall consider both the
nature of the conduct of each party at fault,
and the extent of the causal relation between
the conduct and the damages claimed. The
trier of fact may determine that two or more
persons are to be treated as a single party
if their conduct was a cause of the damages
claimed and the separate act or omission of
each person cannot be distinguished.
(c) The court shall determine the award of
damages to each claimant in accordance with
the findings, subject to a reduction under AS
09.16.040, and enter judgment against each
party liable. The court also shall
determine and state in the judgment each
partys equitable share of the obligation to
each claimant in accordance with the
respective percentages of fault.
(d) The court shall enter judgment against
each party liable on the basis of several
liability in accordance with that partys
percentage of fault.
(Emphasis added.)7 The emphasized passage contains the critical
words. They provide that the award is subject to a reduction
under AS 09.16.040.
The version of AS 09.16.040 to which AS 09.17.080(c)
referred provided:
Release or covenant not to sue. When a
release or covenant not to sue or not to
enforce judgment is given in good faith to
one or two or more persons liable in tort for
the same injury or the same wrongful death
(1) it does not discharge any of the
other tortfeasors from liability for the
injury or wrongful death unless its terms so
provide; but it reduces the claim against the
others to the extent of any amount stipulated
by the release or the covenant, or in the
amount of the consideration paid for it,
whichever is the greater; and
(2) it discharges the tortfeasor to
whom it is given from all liability for
contribution to any other tortfeasor.
(Emphasis added.)8 The emphasized words called for a reduction
(pro tanto) by the amount of the settlement. In 1997 the
legislature amended section .080(c) by deleting this text:
, subject to a reduction under AS 09.16.040.9 This is the text
that requires the reduction in this case.
Unless context requires greater specificity, I refer to
the version of section .080 set out above as AS 09.17.080 or
former AS 09.17.080. Likewise, unless context requires
otherwise, my references to AS 09.17.080(c) are to the version
quoted above. The courts opinion relies on the
principles reflected in subsection .080(d). But subsection
.080(c) contains the language that controls this case, which
concerns the topic of reducing a plaintiffs recovery by the
amount plaintiff received in a prior settlement. Subsection
.080(c) expressly addresses that topic. Subsection .080(d) does
not address it expressly or impliedly, and is irrelevant to the
issue presented here.
There are several different ways to carry out the
reduction required by subsection .080(c). Each requires that the
amount of the prior settlement be subtracted (thus, reduced pro
tanto) from the jurys award at trial, and each precludes the pure
pro rata reduction approach chosen by this court.
The words of subsection .080(c), as it read in 1993,
required the superior court to engage in a three-step reduction
process. It was first to determine the award of damages to each
claimant in accordance with the findings. This award was then
subject to a reduction under AS 09.16.040. Finally, the court
was to enter judgment.
As applied to Robles, the words the award of damages
to each claimant in accordance with the findings seem to mean the
total damages found by the first jury as reduced by the
percentage of fault found by the second jury. These collectively
are the findings that determined the damages award (whether they
were returned by one jury or two). Subsection .080(c) next
required that the award of damages so calculated be subject to a
reduction under AS 09.16.040. Under former AS 09.16.040, amounts
paid in settlement reduced the claim against the other
tortfeasors. After making this reduction, the court was required
by AS 09.17.080(c) to enter judgment. Thus, subsection .080(c)
required the court to subtract the amount of the prior settlement
from the damages award before the court entered judgment against
the trial defendant. In this case, that meant the trial award
had to be reduced by the full amount Gannaway previously received
in settlement, and that the superior court did not err in making
that reduction.
Read most rigorously, the words of subsection .080(c)
required that damages be reduced first by the percentage of
responsibility allocated to anyone (including the settling
tortfeasor) other than the trial defendant, and then by the
amount of the prior settlement. Although this could in some
circumstances result in judgments that arguably under-compensated
plaintiffs, this is the process the controlling statute
specified.
Section .080 can alternatively be interpreted to call
for a comparative reduction approach that respects the different
principles underlying the two subsections. I read those
subsections to reflect two different, but reconcilable,
principles: avoidance of overcompensation or double recovery,
achieved by requiring pro tanto (subtractive) reduction for
amounts previously recovered in settlement (per subsection
.080(c)); and avoidance of joint liability, achieved by requiring
that the judgment against each party be based on several
liability (per subsection .080(d)). The two subsections thus
impose different limitations having different purposes. And
because they impose limitations on the judgment, applying the
subsection requiring the greater limitation in a given case does
not conflict with the other subsection. The advantage of this
approach is that it does not ignore statutory text (here, subject
to a reduction under AS 09.16.040) and considers the effect of
both tort reform limitations.
The best way to reconcile the two provisions is to
apply them comparatively in cases to which they both apply.
Thus, a pro rata reduction would occur if it were needed to
satisfy the several-liability-only policy of subsection .080(d).
And a pro tanto reduction for a prior settlement would occur if
it were needed to satisfy the requirement of subsection .080(c)
that makes an award of damages to each claimant . . . subject to
a reduction under AS 09.16.040. To ensure that the judgment as
entered only reflected each defendants several liability and thus
satisfied subsection .080(d), a trial court following the
comparative reduction approach would have compared the result of
the pro tanto reduction with the result of a pro rata reduction.
A pro tanto reduction required by subsection .080(c) insufficient
to reduce the nonsettling defendants liability below its
proportionate share of the total damages would have the effect of
imposing joint liability on the nonsettling defendant, contrary
to subsection .080(d). To avoid that result, the final judgment
in that situation would have to be based on the pro rata
calculation. This calculation would also avoid overcompensation,
because the judgment would necessarily be no greater than the
amount calculated under subsection .080(c). Similarly, if a
judgment based on pure several liability nonetheless exceeded the
amount calculated after pro tanto reduction for a prior
settlement, calculating the judgment per subsection .080(c) would
best reconcile the demands of both subsections.
In effect, the two subsections can be reconciled by
applying them in a way that carries out the policies that
underlie them.
A hypothetical example illustrates this approach:
plaintiff settles with one of two joint tortfeasors for $80,000.
A jury finds plaintiff suffered damages totaling $100,000 and
finds each tortfeasor fifty percent responsible. The approach
first discussed above requires that the $80,000 settlement be
subtracted from the nonsettling tortfeasors proportionate share
of the damages, resulting in no recovery for the plaintiff.10
Under the comparative approach next discussed, the $80,000
settlement amount is subtracted from the $100,000 total damages
finding. Because the nonsettling tortfeasors resulting post-
offset $20,000 liability is less than that tortfeasors $50,000
proportionate share of the total damages, the purpose underlying
subsection .080(d) protecting the tortfeasor from paying for
harm caused by other tortfeasors is fulfilled and no further
reduction is required. The final recovery is $20,000.11
And if the settling tortfeasor instead paid $20,000, a
pro tanto reduction from the total amount of damages would only
reduce the damages award to $80,000. Because subsection .080(d)
prohibits courts from requiring tortfeasors to pay more than
their proportionate share of damages, the nonsettling tortfeasors
liability cannot exceed $50,000.12
This comparative approach trades the statutes plainer
reading first discussed above for a process that respects both
reductive principles reflected in the two subsections, and leads
to an arguably more equitable reduction formula. It is also the
method the superior court applied in Navistar International
Transport Corp. v. Pleasant.13
But either method of calculation I discuss has the same
effect on todays case: the claimant recovers nothing. And either
method requires a pro tanto reduction. The problem with the
courts opinion is not that it adopts the incorrect method for
applying the reduction required by subsection .080(c)s reference
to AS 09.16.040, but that it declines to apply subsection .080(c)
at all.
Subsection .080(c)s continued reference to AS 09.16.040
until 1997 might seem problematic at first glance; AS 09.16.040,
after all, was repealed in 1988.14 But we are not free to ignore
the express words of AS 09.17.080(c) on a possible theory they
had no meaning. We dealt with a similar interpretive problem
involving AS 09.16.040 and AS 09.17.080 in Benner v. Wichman.15
That case required us to interpret a reference in AS 09.17.080(a)
to AS 09.16.040 after section .040 (and, indeed, all of Chapter
16) had been repealed. We there looked to the repealed statute
in attempting to carry out the drafters intentions because we
regarded the repealed statute as integral to understanding the
disputed language in AS 09.17.080(a).16
Todays opinion advances several reasons for declining
to apply subsection .080(c). Its primary reason seems to be that
the subject to a reduction under AS 09.16.040 clause simply means
that a judgment is subject to reduction under that statute
provided that the statute applies.17 And, per the court, AS
09.16.040 does not apply because it was repealed before the
settlement was reached.18
The court is looking at the wrong statute. Section
.040 was repealed in 1988, but the critical text of subsection
.080(c) was not. We cannot simply ignore the words of subsection
.080(c). Until 1997 they provided that the award is subject to a
reduction under AS 09.16.040.
The courts opinion reads subsection .080(c) as though
it contains qualifying words such as provided that the statute
applies. It does not, of course. But if it had, it would still
apply here, because it addresses the topic in issue here,
reduction for a prior settlement. The courts opinion also reads
the statute as though it merely states that an award is subject
to AS 09.16.040. But it actually states that the award is
subject to a reduction under AS 09.16.040. (Emphasis added.)
The difference is significant.19
The courts opinion advances another theoretical
explanation for the existence of the subject to clause until
1997: The clause usefully protected contractual expectations
arising out of settlements reached before the 1988 initiative
became effective, until it was clear by 1997 that the clause was
vestigial and could be repealed.20 Given that imputed purpose,
the court seems to reason that there is no need for reduction for
post-1988 settlements.
There is no basis for thinking that initiative adopters
or the legislature, by retaining the subject to a reduction
language for about nine years after voters approved the
initiative, intended to protect contract expectations. No
legislative history supports that notion, and reality seems to
rebut it. The contracting parties in a tort settlement are the
tort plaintiff and the settling tortfeasor. The latter has no
interest in how section .080 is applied and the former derives no
protectible contractual benefit as against nonsettling
tortfeasors (who are not party to the contract). No relevant
expectation benefitting the plaintiff arises from the contract
itself. (Even if a statute might give rise to expectations, the
continued existence of the subject to a reduction clause would
have rendered unreasonable any expectation that settlements would
no longer reduce trial awards in Alaska after 1988.) Settlement
incidentally benefitted the nonsettling tortfeasor, who had the
statutory right to a reduction for the amount of the settlement.
But that right derived from the fact of payment, not the contract
itself. So it is hard to imagine that the reduction language was
retained for the limited purpose of protecting contractual
rights. It is therefore equally implausible to think that the
date of settlement is relevant to the statutory analysis required
here. The relevant date is the date when the cause of action
accrued. By accruing before 1997, this cause of action is
governed by the subject to a reduction clause.
The courts opinion, in alternatively suggesting that
subsection .080(c)s reference to the repealed AS 09.16.040 may
have been a drafting mistake,21 may assume that the 1988
initiative was intended to repeal the reduction language in
subsection .080(c). There was no such express repeal and there
was no expression of any such intention.22 Or the opinion may
assume a degree of inconsistency between subsection .080(c) and
subsection .080(d) that can be resolved only by holding that
there was an implied repeal. Any such assumption would be
problematic.
Because we can reconcile the text and the effect of
subsections .080(c) and (d), we cannot assume the implied repeal
of the pro tanto reduction language in subsection .080(c).
Reconciliation turns on recognition that the two subsections have
different purposes and that they focus on different aspects of
tort damages. Subsection .080(d), read literally, focuses on the
parties who are being held liable at trial. It does so by
addressing judgment against each party liable and by adopting
several-only liability, fundamentally limiting defendants
liability. In comparison, the first two clauses of subsection
.080(c) focus on what claimants may recover. Thus, those clauses
address the award to each claimant as calculated in accordance
with the findings, and therefore take into account any fault of
the plaintiff as well as the fault of the tortfeasors. The two
subsections can be reconciled by reading subsection .080(c) to
limit what a plaintiff can recover (because it requires a
reduction of the plaintiffs award per AS 09.16.040) and by
reading subsection .080(d) to limit what a defendant can be made
to pay (because entering judgment on the basis of several
liability under that subsection does not necessarily foreclose
any other limitation, such as a reduction for amounts previously
received). The two subsections can be read together to limit the
amount a plaintiff can recover from the defendants at trial, both
by limiting a plaintiffs total compensation and by limiting a
defendants individual exposure. The two subsections can be most
clearly reconciled by applying the comparative reduction
methodology discussed above on pages 7-10.
If we ignore this method of reconciling the two
subsections, they can be read to conflict, on a theory the pro
tanto reduction subsection .080(c) required was inconsistent with
the pro rata reduction subsection .080(d) seemed to require. But
this conflict is only implied, and it is not obvious how it
should be resolved. To resolve it as the courts opinion
implicitly seems to do (by declining to apply subsection .080(c))
reads words out of the statute, and renders them not merely
innocuously superfluous, but actively irreconcilable.23 This
requires us to ignore specific statutory text dealing with a
specific topic (subtractive reduction for amounts previously
received) in favor of general language that unspecifically calls
for entry of judgment on the basis of several liability.24 It
also raises questions about the effect of the 1997 express
repeal.
It is theoretically possible to surmise that an
intention to adopt several-only liability cannot be reconciled
with the subtractive reduction subsection .080(c) requires. But
the only (or main) perceived evil being addressed in 1988 was any
form of joint liability, i.e., any principle by which a defendant
at trial could be required to pay more than its pro rata share of
the damages. Avoiding joint liability does not necessarily
conflict with a reduction for prior settlements, nor does the
methodology conflict if the comparative approach is applied.
I am not prepared to hold that the 1988 amendment
somehow repealed the critical words of subsection .080(c). The
courts opinion may reason that what it calls pure several
liability25 somehow nullifies subsection .080(c)s reduction
language. To the extent the opinions analysis turns on its
characterization of the amendments purpose, I am unconvinced.
The 1988 amendment had the purpose and effect of repealing any
remaining possibility that defendants would be exposed to joint
liability.26 Ending defendants exposure to joint liability is
not inherently and thematically at odds with reducing a
plaintiffs award by the amount of a prior settlement or recovery.
Thinking that pure several liability had a purpose of benefitting
injured plaintiffs ignores the history of tort reform in Alaska.
Several-only liability was adopted in 1988 to prevent modified
joint liability;27 plaintiffs loss of an opportunity to hold
defendants jointly liable was regarded as detrimental to
plaintiffs and beneficial to defendants.28 Throughout its
history, Alaska tort reform has focused on limiting defendants
liability and reducing the cost of liability insurance.29
Supporters of tort reform memorialized no concern about whether
tort defendants at trial might pay less than their share of
damages or that trial awards might under-compensate tort
plaintiffs.30
In any event, several-only liability is not necessarily
at odds with a policy choice of requiring reductions per the
language of subsection .080(c). The concept of several liability
does not preclude a reduction for prior settlements. Likewise,
pure several liability was adopted because even modified joint
liability was considered undesirable.31 Joint and several
liability (and, later, several and modified joint liability) were
features of Alaska tort law for many years.32 Defendants
exposure to joint liability provoked several statutory
amendments. Consequently, as of 1988 (and thus as of October 6,
1993) a drafter could have both rationally intended that
subsection .080(d) would simply abolish joint liability and
logically reasoned that several liability would determine the
maximum amount (not the final amount) of a judgment against a
defendant. A drafter likewise could have reasoned that
subsection .080(c), by requiring the specified reduction before
entry of judgment, was not inconsistent with foreclosing
judgments based on joint liability. The history of tort reform
in Alaska reflects a series of partial measures addressing a few
aspects of tort law at a time. The 1988 interest in addressing
one perceived problem joint liability does not prove an
interest in addressing all other possible problems, as well.
Moreover, reading subsection .080(c) to require a
subtraction of the amount received notwithstanding subsection
.080(d) is consistent with our decisions interpreting analogous
statutes. The superior court here applied what we said about
reduction in Universal Motors, Inc. v. Neary (which arose under
the same statutory regime).33 As the next part of my dissent
discusses, subtractive reduction for prior tort settlements was
long a feature of Alaska law. A drafter aware of our decisional
law could have rationally intended to retain the reduction
feature expressed in former subsection .080(c).
Indeed, as of 1993 (and until 1997), AS 09.17.080 also
contained two other references to AS 09.16.040 notwithstanding
that sections repeal in 1988.34 Those other two references and
our treatment of one of them in 1994 argue against any implied
repeal.35
In short, we are not free to disregard the statutory
reduction language.
3. Our Precedent. Despite periodic statutory
changes, our decisions discussing the applicable statutory scheme
and its predecessors consistently recognized that an award
against a negligent tortfeasor had to be reduced by amounts the
plaintiff previously received as damages from other tortfeasors.
This is so whether the prior recovery was by settlement or
judicial award.
Navistar International Transport Corp. v. Pleasant
illustrated how the statutory reduction was to work.36 It
confirms that in Alaska, at least before 1997, a tort award had
to be reduced at least by the amount of a prior settlement.
Pleasant suffered personal injury in July 1986 and sued several
alleged tortfeasors.37 After the jury returned a verdict for the
plaintiff against some of the tortfeasors but before judgment was
entered, the plaintiff settled with one of the defendants for a
large amount.38 The settlement agreement allocated some of the
settlement to punitive damages and the remainder to compensatory
damages.39 To calculate the judgment against the nonsettling
tortfeasor, the superior court applied the comparative reduction
approach I describe in Part 1. Thus, it compared the result of a
pure pro tanto reduction per AS 09.17.080(c) with the result of a
proportionate share calculation under the modified joint and
several liability regime per AS 09.17.080(d) as it read when
Pleasant was injured.40 Because it found that the modified joint
and several liability result was less than the pro tanto
result,41 it entered judgment based on the former result.42 We
reversed because the superior court, in reducing pro tanto, did
not subtract the part of the settlement amount allocated to
punitive damages; it therefore incorrectly concluded that the pro
tanto reduction result was larger than the modified proportionate
share result and therefore incorrectly entered judgment based on
the latter method.43 We confirmed that it was appropriate to
reduce pro tanto; indeed, we reversed because the pro tanto
reduction did not subtract the full amount of the prior
settlement.44 We raised no question about the superior courts
use of the comparative reduction approach, and tacitly seemed to
approve it. Nothing about the amendment to subsection .080(d)
effective in 1989 renders the comparative reduction approach less
appropriate or justifies complete failure to carry out the
subsection .080(c) reduction approved in Navistar.
In Norcon, Inc. v. Kotowski,45 Kotowski, claiming she
had suffered sexual harassment in June and July, 1989, sued
Norcon and Exxon for, among other things, compensatory damages
for emotional distress and lost earnings.46 She settled with
Exxon before trial for $20,000.47 The trial jury then awarded
her compensatory damages of about $10,000 against Norcon,48 which
argued on appeal that the amount of the Exxon settlement had to
be subtracted from the jury award to avoid a double recovery.49
We agreed, citing Navistar.50
In Neary, we considered whether the one-action rule
barred Nearys second personal injury lawsuit for a 1994
accident.51 We held that the statutory regime then in effect
(the same regime that applies here) did not mandate a single
action for each injury or accident.52 We also reasoned that it
was not necessary to adopt a one-action rule to prevent
inconsistent results or double recoveries.53 We so concluded
because we recognized that the damages award at a second trial
had to be offset by what a plaintiff had already received at a
first trial.54 In support, we cited Norcon and Navistar.55
In Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin,
we held that consideration paid in AS 09.16.040(1) included
amounts paid per a loan receipt even if plaintiff had to repay
the amount so received.56 [A]nything received by way of a
covenant not to sue operates as a payment pro tanto upon any
judgment obtained against the others. 57 We recognized that the
reduction was pro tanto.58
In Chenega Corp. v. Exxon Corp., we again recognized
that non-collateral source payments received by a plaintiff must
be deducted from a jury award against a tortfeasor.59
The courts opinion today distinguishes these opinions
on the theory they turn on statutes that predated the pure
several liability regime enacted by initiative in 1988.60 But
the 1988 initiative did not repeal the language in AS
09.17.080(c) that required a reduction in accordance with AS
09.16.040.
Our decisions therefore confirm that the applicable
statutes require a pro tanto reduction, at least for purposes of
applying the comparative reduction approach that the superior
court used and that we tacitly approved in Navistar.61 Because
the pro tanto statutory reduction requirement recognized in those
cases cannot be reconciled with the pro rata reduction approach
adopted here, stare decisis forecloses the result the courts
opinion would reach unless the court addresses and overrules this
precedent.
The courts opinion does not discuss or apply the
analytical standard that we use in deciding whether to overrule
our past precedent. But it is hard to see how that standard
could be satisfied here.62 There is no basis for thinking our
past decisions were wrong when we issued them; they appropriately
relied on AS 09.17.080(c) as it read until 1997. The policy
choice between pro tanto and pro rata reduction is not so one-
sided that we can now say that our decisions applying a pro tanto
approach were wrong when decided. After we issued those opinions
no conditions changed relative to when this cause of action
accrued in 1993. It likewise cannot be said that more good than
harm would result from departing from our precedent: The
statutory issue now before us seems unlikely to arise again,
given that the 1997 amendment has now been in effect for nine
years. It seems unlikely the issue will recur. There is no
pressing reason to reinterpret statutory text that has not
existed since 1997. The harshness the courts opinion perceives
in applying a pro tanto reduction cannot justify overruling
precedent that originates in the policy choices the statute
reflects. But to the extent pro tanto reduction may lead to a
harsh result, harshness is avoided by reading the statute to
provide for the comparative reduction approach discussed in Part
2, above, and applied in Navistar. The avoidable possibility of
a harsh result cannot justify overruling our prior decisions.
4. Tort Principles of Compensatory Damages. Several
value judgments seem to underlie the courts analysis. The
opinion seems to reason that a central purpose of the 1988
initiative was to ensure that tortfeasors are held accountable
for the harm they cause.63 It perceives signs of this policy in
expressions of an intention to make a tortfeasor pay for the harm
he or she has caused.64 It concludes that the potential for
overcompensation is justified by the reciprocal risk of settling
with a defendant for less than that defendants comparative share
of the harm.65 Its conclusion therefore turns on the weight it
gives the policies it identifies. I discuss public
policy only reluctantly here. In my view the express words of AS
09.17.080(c) before amendment in 1997 both specify what courts
must do in this case and prevent courts from invoking public
policy to make a policy choice different than that reflected in
the statutes words.66 I discuss public policy here only to
demonstrate that for claims that arose in 1993, the reduction the
statute required until 1997 was consistent with a valid and
important principle of tort law that had long been recognized and
applied in Alaska, and that was not foreclosed by any public
policy identified by the court today.
The policy choice underlying the courts analysis today
confuses the pertinent policies and misconceives tort law in
context of claims by victims of negligence, at least as to claims
accruing before 1997. Thus, it is a controlling and fundamental
principle of tort law, notwithstanding its Dickensian flavor of
unreality, that negligently inflicted personal injuries can be
fully compensated with money.67 Money can make the personal
injury plaintiff legally whole, whether or not medical science
can. This means that the harm to the plaintiff is measured in
dollars. And it means that when the plaintiff has received
dollars equal to the monetary value of the harm suffered, the
plaintiff is no longer suffering harm.68 He is cured. And if he
receives dollars equal to half the monetary value of his harm, he
is half-cured. This means that his harm, in the eyes of the law,
is only half what it was before he was paid. Thus, speaking
hypothetically, if the plaintiffs harm is valued at $400,000 and
he receives $100,000 from one tortfeasor in a settlement, by
definition only $300,000 of harm remains uncompensated. Things
are more complicated in dealing with a settlement and then a
subsequent trial at which a jury finds the amount of damages, but
the complication is conceptually unimportant. If the jury finds
that the plaintiff suffered damages worth $400,000, his receipt
of the prior $100,000 settlement proceeds means that the post-
settlement value of plaintiffs harm is only $300,000.
This means that applying a policy of requiring a
tortfeasor to pay for the harm he has caused necessarily raised
this question (before 1997): what harm has the plaintiff suffered
after he has been made partly whole? In the above hypothetical
the uncompensated harm is $300,000, not $400,000. Public policy
demands that the trial defendant pay for the harm attributable to
him;69 it does not demand that he pay for harm that has already
been remedied, and no legislative history or tort reform history
applicable to this case supports a conclusion to the contrary.70
Policy does not require him to pay for harm that is already cured
by partial settlement with another tortfeasor.71 After the
settlement, the second tortfeasor is no longer responsible for
the first $100,000 worth of harm; as to that harm, plaintiff has
already been fully compensated.72 Because dollars define the
harm, it is the uncompensated harm, and not the entire harm, for
which the wrongdoer must pay. That is as far as the public
policy of making the tortfeasor pay goes.73
The second problem is that the drafts perception of a
broader public policy is almost certainly incorrect given the
improbability that any tort reforms from 1986 onward had any
purpose of requiring tortfeasors to pay plaintiffs more than the
amount of their uncompensated damages.
Public policy in Alaska has long required a setoff (or
reduction) for prior settlements. In Luth v. Rogers & Babler
Construction Co., we stated that common law principles prohibit
double recovery:
A cardinal common law principle establishes
that in the absence of punitive damages a
plaintiff can recover no more than the loss
actually suffered. The doctrine prohibiting
double recovery supports the rule that a
payment received by the plaintiff for a
covenant not to sue someone potentially
liable in tort must be deducted from the
damages recoverable from persons whose tort
liabilities arise out of the same
circumstances.[74]
Alaska Statute 09.16.040, adopted after Luths accident,
embodied the same rule. Nothing in the history of chapter 17
suggests that its proponents intended to make it possible for
personal injury plaintiffs to recover more money than it took to
make them whole. Instead, it would appear that the legislature
intended to reduce the possibility of overcompensation when, in
1986, it broadened the categories of collateral benefits that
require that a judgment be reduced.75 Chapter 17 reflects a
policy choice of preventing plaintiffs from recovering from
tortfeasors any unsubrogated health benefits the plaintiffs have
received from the plaintiffs own insurance companies for the same
injuries.76 Nothing that happened in connection with the 1988
initiative suggests a more plaintiff-oriented policy.
In short, the subtractive reduction that former
subsection .080(c) requires in this case is consistent with
public policy. The broad public policies discussed in the courts
opinion do not permit us to disregard the words of the statute.
5. Conclusion. I therefore conclude that we should
affirm the reduction made by the superior court.
_______________________________
1 29 P.3d 838, 840-41 (Alaska 2001).
2 But as required by the settlement agreement, Petrolane
was ordered to pay ten percent of Gannaways judgment against
Robles directly.
3 Robles, 29 P.3d at 844.
4 Id. at 844 n.21.
5 Id. at 846 n.30.
6 984 P.2d 515 (Alaska 1999).
7 Rausch v. Devine, 80 P.3d 733, 737 (Alaska 2003).
8 Sisters of Providence in Washington v. A.A. Pain
Clinic, Inc., 81 P.3d 989, 997 n.4 (Alaska 2003).
9 Robles argues that AS 09.17.080 was amended in 1997 and
that the revised statute only applies to causes of action
accruing on or after August 7, 1997, well after accrual of the
cause of action in this case. Thus, he argues this provision is
inapplicable. While much of AS 09.17.080 was revised in 1997,
the language of subsection .080(d) was enacted by initiative in
1988, came into force on March 5, 1989, and was not affected by
the 1997 amendment. Consequently, subsection .080(d) was the law
in 1993, when the events underlying this case occurred. See
Herscher v. State, Dept of Commerce, 568 P.2d 996, 1001 (Alaska
1977) (quoting 1A Sutherland: Statutes and Statutory Construction
22.23, at 191 (4th ed. 1972)):
Provisions of the original act or section
which are repeated in the body of the
amendment, either in the same or equivalent
words, are considered a continuation of the
original law. . . . The provisions of the
original act or section re-enacted by the
amendment are held to have been the law since
they were first enacted, and the provisions
introduced by the amendment are considered to
have been enacted at the same time the
amendment took effect.
10 Because the second jury found that Petrolane was 43.75%
responsible for the accident, Petrolane owed Robles 43.75% of
Robless already-determined damages of $871,216.19, or
$381,157.08, plus pre-judgment interest, costs, and fees, if no
offset applied.
11 Kodiak Island Borough v. Roe, 63 P.3d 1009, 1013
(Alaska 2003) (internal citations omitted).
12 Id.; Alaska Gen. Alarm Inc. v. Grinnell, 1 P.3d 98, 100
(Alaska 2000). The changes effected by the 1988 initiative went
into effect in 1989.
13 See 1988 Election Pamphlet for Initiative 87TOR2
(statement in support).
14 Id.
15 Id.
16 828 P.2d 745 (Alaska 1992).
17 887 P.2d 951 (Alaska 1994).
18 Bohna, 828 P.2d at 758 (citing AS 09.16.040); Navistar,
887 P.2d at 958 n.9 (citing former AS 09.17.090 and noting this
statute was identical to AS 09.16.040(1)). The former AS
09.17.090 stated in relevant part:
(1) it does not discharge any of the other
tortfeasors from liability for the injury or
wrongful death unless its terms so provide;
but it reduces the claim against the others
to the extent of any amount stipulated by the
release or the covenant, or in the amount of
the consideration paid for it, whichever is
the greater.
Robles also cites to Luth v. Rogers & Babler Const.
Co., 507 P.2d 761, 766 (Alaska 1973) (internal citations omitted)
where our analysis depended upon the now-abrogated common law:
A cardinal common law principle establishes
that in the absence of punitive damages a
plaintiff can recover no more than the loss
actually suffered. The doctrine prohibiting
double recovery supports the rule that a
payment received by the plaintiff for a
covenant not to sue someone potentially
liable in tort must be deducted from the
damages recoverable from persons whose tort
liabilities arise out of the same
circumstances. This rule is applicable
regardless of whether the covenantee, under a
covenant not to sue, is a party to the suit.
19 Krieser v. Hobbs, 166 F.3d 736, 740 (5th Cir. 1999).
See also Waite v. Morisette, 843 P.2d 1121, 1123 (Wash. App.
1993) (pro tanto rule logical so long as joint and several
liability remained in effect, because a nonsettling defendant
could be liable for 100 percent of the damages regardless of the
degree to which that party was at fault. Thus with joint
liability, fairness dictated that credit be given for amounts
paid to the claimant by settling defendants.).
20 Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 431
(Tex. 1984). See also Krieser, 166 F.3d at 743 ([W]here
liability is not joint-and-several, and each defendant instead
bears liability for damages only proportionate to his own fault,
there is no assessment of liability for damages common to the
settling and non-settling defendants. Accordingly, the
settlement has an entirely separate basis from the apportioned
damages, and the one-recovery rule does not apply.).
21 Robles also cites to Norcon, Inc. v. Kotowski, 971 P.2d
158 (Alaska 1999), where we offset the plaintiffs compensatory
damages award against Norcon by the value of a prior settlement
with another defendant. Id. at 171. Norcon was governed by the
1988 initiative, but in applying an offset, we cited only to
Navistar Intl Transp. Co. v. Pleasant, 887 P.2d 951, 957-58
(Alaska 1994), which was governed by the pre-1989 joint and
several liability regime. Because full offsets are limited to
joint and several liability systems, and because in Norcon we did
not examine or discuss which type of offset is appropriate under
several liability, we decline to apply Norcon to the present
case. Moreover, Norcon is distinguishable in that it required
full offset in order to avoid double recovery by the plaintiff,
whereas in the present case full offset will only allow a
wrongdoing defendant to escape accountability.
In Chenega Corp. v. Exxon Corp., 991 P.2d 769 (Alaska
1999), we approved a full offset of a $6,000,000 judgment against
a $23,000,000 payment plaintiffs received from the federal Trans-
Alaska Pipeline Liability Fund. Id. at 790-92. Chenega is at
best inapposite and at worst actually undercuts Robless argument
for two reasons. First, in Chenega we did not consider
apportionment of damages under AS 09.17.080(d) and expressly
declined to consider the propriety of a full offset of the
judgment against Exxon by the settlement payment tendered by
Exxons co-defendant, the Alyeska Pipeline Service Company. Id.
at 790-92 and n.96. Second, our primary concern in Chenega was
double payment, not double recovery; an offset was justified
because Exxon would have had to pay the Fund for its payments to
the same plaintiffs for the same damages: This . . . is not a
situation in which denying a set off is necessary to prevent the
wrongdoer from escaping accountability. Id. at 792. In this
case, however, Robles is not exposed to double payment. Indeed,
allowing a full offset would allow Robles to escap[e]
accountability completely. Id.
22 McDermott v. AmCylde, 511 U.S. 202, 208-217 (1994)
(discussing various approaches and adopting proportionate share
rule).
23 See Krieser, 166 F.3d at 743 (noting that courts in
sixteen states have deemed full offsets to be incompatible with
several liability regimes); Wells v. Tallahassee Meml Regl Med.
Ctr., Inc., 659 So. 2d 249, 252 (Fla. 1995) (describing
proportionate share rule as clearly the majority rule and
adopting same); Thomas v. Soldberg, 442 N.W.2d 73, 77 (Iowa 1989)
(applying proportionate offset rule and listing cases reaching
same conclusion).
24 Restatement (Third) of Torts: Apportionment of
Liability 16 (1999) (recommending proportionate share approach
under joint and several liability). See also id. at B19
(recommending proportionate share approach under several
liability).
25 Id. at 16 cmt. e (1999). Although 16 generally
discusses joint and several liability, the Restatement adopts the
same rule regarding the liability of nonsettling defendants in
both the joint and several liability and pure several liability
contexts. See id. at 16, cmt. h. ([T]he liability of a
nonsettling defendant remains the same whether a credit is
provided pursuant to this Section in the case of a joint and
severally liable defendant or . . . in the case of a severally
liable defendant.). See also id. at B19 cmt. k (As when joint
liability and several liability is the governing rule, the
plaintiff may recover more than the total damages determined by
the factfinder as a result of making a beneficial settlement with
some tortfeasors.).
26 See id. at 16 Reporters Note cmt. e. (Providing such a
windfall to the nonsettling defendant also has the detrimental
effect of discouraging settlements, both by the plaintiff who
will not obtain the benefit of a favorable settlement with the
first settling tortfeasor and by defendants who were not initial
settling tortfeasors, because they can obtain the benefits of a
less favorable settlement by the plaintiff with earlier settling
tortfeasors only if they refuse to settle and continue to
trial.). See also Roland v. Bernstein, 828 P.2d 1237, 1239
(Ariz. App. 1991) (noting full offsets discourage settlements);
Kussman v. City & County of Denver, 706 P.2d 776, 782 (Colo.
1985) (same).
27 Anchorage Sch. Dist. v. Anchorage Daily News, 779 P.2d
1191, 1193 (Alaska 1989) (We recognize the important public
policy served by those measures which encourage settlement.);
Interior Credit Bureau, Inc. v. Bussing, 559 P.2d 104, 106
(Alaska 1977) (Stipulations and settlements are favored in law
because they simplify, shorten and settle litigation without
taking up valuable court resources.).
28 See Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 431
(Tex. 1984) (citations omitted) ([S]ettlement dollars are not the
same as damages. Settlement dollars represent a contractual
estimate of the value of the settling tortfeasors liability and
may be more or less than the proportionate share of the
plaintiffs damages. The settlement includes not only damages,
but also the value of avoiding the risk, expense, and adverse
public exposure that accompany going to trial. There is no
conceptual inconsistency in allowing a plaintiff to recover more
from a settlement or partial settlement than he could receive as
damages.).
29 984 P.2d 515 (Alaska 1999).
30 Id. at 516.
31 Id. at 518.
32 Id.
33 Id.
34 Id.
35 Id.
36 Id. at 518 n.14.
37 Id. (quoting Restatement (Third) of Torts:
Apportionment of Liability. 33 cmt. f (Proposed Final Draft Mar.
22, 1999)).
38 McLaughlin v. Lougee, 137 P.3d 267, 279 (Alaska 2006).
39 874 P.2d 949, 957 n.18 (Alaska 1994).
40 Id. Contrary to the dissents assertion, nothing in
Benner required this court to interpret the reference in AS
09.17.080(a) to AS 09.16.040.
41 Brian Garner seems to support this reading; he views
the phrase subject to as essentially redundant when used in a
statute to refer to other provisions of law:
subject to the provisions of this Act. This
redundancy appears frequently in common-law
statute-drafting. A variation is subject to
any contrary provision of this Act. As often
as not, it signals poorly organized drafting;
certainly it makes the interpreters job no
easier.
Bryan A. Garner, A Dictionary of Modern Legal Usage at 840
(Oxford University Press 1995).
42 821 P.2d 714 (Alaska 1991).
43 Id. at 717.
44 Robles v. Shoreside Petroleum, Inc., 29 P.3d 838, 844
n.21, 846 (Alaska 2001).
45 See the discussion supra at pp. 20-22.
46 Robles, 29 P.3d at 846.
47 K & K Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702,
718 (Alaska 2003) (citations omitted).
48 City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska
2004) (citation omitted).
49 Jackson v. American Equity Ins. Co., 90 P.3d 136, 141
(Alaska 2004) (citing Reich v. Cominco Alaska, Inc., 56 P.3d 18,
25 (Alaska 2002)).
50 General Motors Corp. v. Farnsworth, 965 P.2d 1209, 1214
(Alaska 1998) (citing Vincent By Staton v. Fairbanks Meml Hosp.,
862 P.2d 847, 851 (Alaska 1993)).
51 Robles v. Shoreside Petroleum, Inc., 29 P.3d 838, 841
(Alaska 2001).
52 Id. at 846.
53 Wolff v. Arctic Bowl, Inc., 560 P.2d 758, 763 (Alaska
1977) (internal citations omitted).
54 State, Commercial Fisheries Entry Commn v. Carlson, 65
P.3d 851, 859 (Alaska 2003) (internal quotations and citations
omitted).
55 Conner v. Stelly, 830 So. 2d 1102, 1110 (La. App.
2002). See also Watts v. Seward School Bd., 421 P.2d 586 (Alaska
1966) (Rabinowitz, J., dissenting in part and concurring in
part), vacated on other grounds, 391 U.S. 592 (1968) (explaining
that law of case promotes judicial efficiency by narrowing issues
in successive stages of litigation).
56 Robles, 29 P.3d at 842-44.
57 Id. at 846.
58 Petrolane also cites AS 09.17.080(b), which provides
that [i]n determining the percentages of fault, the trier of fact
shall consider both the nature of the conduct of each party at
fault, and the extent of the casual relation between the conduct
and the damages claimed. Petrolane argues that the statutory
language supports its argument that the second jury was required
to make new determinations regarding the parties negligence and
related causation. However, this statute only requires that such
determinations be made by a fact-finder. Where, as here, a prior
fact-finder made determinations of negligence that are unaffected
on remand, these determinations should not be revisited. Cf.
State v. Kaatz, 572 P.2d 775, 785 n.11 (Alaska 1977) (If a new
trial on the issue of apportionment is granted, the court should
instruct the jurors that (1) they must assign some percentage of
the negligence to each party, (2) the total damages are in the
sum found by the previous trier of fact (unless the same jury is
also retrying the damages issue), and (3) their sole function is
to apportion the negligence between the parties.).
59 48 P.3d 1170 (Alaska 2002).
60 Id. at 1173.
61 Id. at 1175-76.
62 Id. at 1176.
63 Id.
64 Petrolanes argument also contradicts the Neary
hypothetical discussed above. See supra Part IV.A.1, pp. 14-15.
In Neary we noted that in a second trial by the same plaintiff
against a different defendant, there should be a determination of
the comparative fault of all parties, but that the second
defendant would be entitled to a ruling based on collateral
estoppel that P and D1 are negligent, although the percentage of
their total fault . . . cannot be specified, for that issue has
not been litigated. Universal Motors, Inc. v. Neary, 984 P.2d
515, 518 (Alaska 1999).
1 Slip Op. at 10, 11-12, 16.
2 Slip Op. at 7.
3 In Robless case, two different juries returned the
corresponding findings; the first determined the amount of
damages and the second allocated fault. This circumstance is
irrelevant to the issue presented.
4 Slip Op. at 16.
5 More accurately, it appears that the appellant asks us
to apply the 1988 initiative that amended AS 09.17.080(d) and
adopted pure several liability.
6 Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin,
828 P.2d 745, 758 (Alaska 1992).
7 As first enacted in 1986, subsection .080(c) referred
to AS 09.17.090. Ch. 139, 1, SLA 1986. The legislature
substituted AS 09.16.040 in 1987. Ch. 14, 16, SLA 1987.
8 The 1988 initiative repealed chapter 16, including AS
09.16.040, but did not delete the three references to section
.040 in AS 09.17.080(a) and (c). 1987 Initiative Proposal No. 2,
adopted in 1988. The initiatives amendments became effective
March 5, 1989.
9 Ch. 26, 13, SLA 1997. The legislature also amended
subsections .080(a) and (b), but not subsection .080(d). Ch. 26,
1112, SLA 1997. The 1997 changes applied to causes of action
accruing on or after August 7, 1997. Ch. 26, 55, SLA 1997. The
text of subsection .080(c) deleted in 1997 therefore applies to
this case because the cause of action accrued in 1993.
10 The math is as follows: ($100,000 x 0.50) $80,000 =
$30,000. Because no negative award is possible here, there is no
recovery.
11 The math for the comparative approach requires dual
calculations. The first calculates the maximum amount that the
nonsettling tortfeasor should be required to pay as follows:
$100,000 x .50 = $50,000. The second calculates the maximum
amount that the plaintiff may receive without receiving a partial
double recovery as follows: $100,000 - $80,000 = $20,000.
Taking the lower of the dual calculations will ensure that both
policies the avoidance of joint liability and the avoidance of a
double recovery are satisfied.
12 The dual calculations here would be as follows. The
first would be: $100,000 x .50 = $50,000. The second would be:
$100,000 - $20,000 = $80,000. Again, selecting the lower of the
two results will ensure that the nonsettling tortfeasor pays only
for the damages he has caused while also ensuring that the
plaintiff does not receive a double recovery.
13 Navistar Intl Transp. Corp. v. Pleasant, 887 P.2d 951,
956 (Alaska 1994).
14 The voters approved the 1987 Initiative Proposal No. 2
repealing chapter 16 in 1988.
15 Benner v. Wichman, 874 P.2d 949 (Alaska 1994).
16 Id. at 957 n.18 (interpreting AS 09.17.080(a)s
reference to AS 09.16.040).
17 Slip Op. at 18.
18 Id.
19 The clause is not a mere redundancy, unlike the generic
phrase (subject to the provisions of this Act) condemned by Brian
Garner. Bryan A. Garner, A Dictionary of Modern Legal Usage at
840 (Oxford University Press 1995). The clause here is specific:
it specifies the topic and the required action (reduction) and it
also provides a specific statutory cross-reference.
20 Slip Op. at 19.
21 Slip Op. at 19.
22 1987 Initiative Proposal No. 2. The initiative amended
AS 09.17.080(d), repealed AS 09.16, and made these changes
applicable to all causes of action accruing after the effective
date of the act. Id. The initiative did not amend, or mention,
AS 09.17.080(c).
23 See In re Adoption of Missy M., 133 P.3d 645, 650
(Alaska 2006) (holding that effect should be given to all words
of statute so that none are rendered superfluous); Mech.
Contractors of Alaska, Inc. v. State, Dept of Pub. Safety, 91
P.3d 240, 248 (Alaska 2004) (presuming that the legislature
intended every word, sentence, or provision of a statute to have
some purpose, force, and effect, and that no words or provisions
are superfluous (quoting Kodiak Island Borough v. Exxon Corp.,
991 P.2d 757, 761 (Alaska 1999))).
24 See City of Cordova v. Medicaid Rate Commn, Dept of
Health & Soc. Servs., State, 789 P.2d 346, 352 (Alaska 1990) (It
is a maxim of construction that specific statutes should be given
precedence over more general ones.).
25 Slip Op. at 8, 10.
26 See McLaughlin v. Lougee, 137 P.3d 267, 277 (Alaska
2006) (The scant legislative history demonstrates that the
initiatives supporters were concerned almost exclusively with
ensuring that defendants would be liable only for their share of
fault. (quoting Alaska Gen. Alarm, Inc. v. Grinnell, 1 P.3d 98,
106 (Alaska 2000))).
27 See Election Pamphlet for 1987 Initiative Proposal No.
2 (87TOR2) (statement in support).
28 See id. (statement in opposition).
29 See House Floor Debate on SB 337 (May 8, 1986)
(statement of Rep. Pearce) (noting that the real victims that I
think were all here working for are the people who cant get
insurance because their rates have gone out of sight and that
society has gone overboard for the victims), transcribed in
Respondents Brief, FMC Corp. v. Craig Taylor Equip. Co., No. S-
2261 (Alaska 1988), App. B, at 2425; id. at 57 (statement of Rep.
Pignalberi) (rebutting criticism that tort reform proposal would
have no effect on insurance rates); id. at 109 (statement of Rep.
Miller) (arguing that anything less than pure several liability
is unfair to defendants); id. at 111 (statement of Rep. Boucher)
(arguing that tort reform is necessary because of general greed
of our society); id. at 116 (statement of Rep. Hanley) (noting
that I think there are members among us who, perhaps, even think
that the simple several liability . . . is . . . a fair
approach); Senate Floor Debate on SB 337 (May 5, 1986) (statement
of Sen. Faiks) (noting that Director of Division of Insurance
believed that limitations on joint and several liability would
allow division to gain rate reductions, new markets and increased
capacity), transcribed in Respondents Brief, FMC Corp. v. Craig
Taylor Equip. Co., No. S-2261 (Alaska 1988), App. A, at 33; id.
at 67 (statement of Sen. Kelly) (arguing that the bill would
lower insurance premiums and increase insurance availability);
see also Letter from Governor Bill Sheffield to Sens. Faiks &
Sackett, Co-Chairs, Senate Finance Committee and Rep. Miller,
Chairman, House Judiciary Committee, at 1 (Apr. 28, 1986) (noting
that the real goal of tort reform is affordable insurance);
Election Pamphlet for 1987 Initiative Proposal No. 2 (87TOR2)
(statement in support) (arguing that joint and several liability
is unfair because it forces people to pay for damages caused by
somebody else); id. (statement in opposition) (arguing that if
several liability is enacted, the insurance company wins and the
victim loses); cf. ch. 26, 1, SLA 1997 (explaining that purposes
of 1997 tort reform act included discouraging frivolous
litigation, alleviat[ing] the high cost of malpractice insurance
premiums, and fostering an environment likely to control the
increase of liability insurance rates).
30 Some legislators reluctantly supported the 1986 tort
reform bill that introduced partial, or modified, joint
liability, because this represented a compromise seen as less
harmful to plaintiffs than pure several liability ultimately
adopted in 1988. See Senate Floor Debate, supra note 29, at 34
(statement of Sen. Josephson) (explaining that many of us who
would prefer to continue to have the doctrines of tort law
developed in the courts arising out of concrete fact situations
with advocacy on both sides are yielding, in a sense, our better
judgment and saying were willing to legislate because there is
that crisis or the perception of a crisis); id. at 25 (statement
of Sen. Rodey) (describing his proposal for modified joint and
several liability as a middle ground). One legislator reasoned
that a benefit of tort reform would be that more potential
tortfeasors could afford liability insurance, and thus might
increase the chances tortfeasors would be able to respond to tort
claims. See id. at 6768 (statement of Sen. Eliason).
31 See Election Pamphlet for 1987 Initiative Proposal No.
2 (87TOR2) (statement in support).
32 See ch. 80, 1, SLA 1970 (codified as amended at AS
09.16.010.060) (codifying joint and several liability); ch. 139,
11, SLA 1986 (establishing several and modified joint liability);
see also Kodiak Island Borough v. Roe, 63 P.3d 1009, 1013 (Alaska
2003) (explaining history of joint and several liability in
Alaska).
33 Universal Motors, Inc. v. Neary, 984 P.2d 515 (Alaska
1999).
34 See former AS 09.17.080(a) and .080(a)(2) (1993) (both
referring to parties and persons released from liability under AS
09.16.040).
35 See Benner, 874 P.2d at 958 n.18 (consulting repealed
AS 09.16.040 in interpreting AS 09.17.080(a)).
36 Navistar Intl Transp. Corp. v. Pleasant, 887 P.2d 951
(Alaska 1994).
37 Id. at 95354. When Pleasant was injured, Alaska had a
system of modified joint and several liability, which capped
joint liability against a tortfeasor less than fifty percent at
fault at twice its percentage of fault. See former AS
09.17.080(d) (1987).
38 Navistar, 887 P.2d at 954.
39 Id.
40 Id. at 956. The specific facts of Navistar are complex
because of the number of alleged tortfeasors. Here is how the
superior court calculated the judgment. It first subtracted the
portion of the settlement allocated to compensatory damages
($1,525,046) from the jurys total damages verdict and prejudgment
interest ($3,431,459.61). Id. The court then further reduced
the award by the amount of a settlement with a second tortfeasor
($200,000) and plaintiffs ten percent comparative negligence
($342,510.10) for a total of $1,357,544.94. Id. The court
compared this total to the amount called for by the modified
joint and several liability system in force at the time. Id.
For the modified joint and several liability calculation, the
court deducted the enhanced prejudgment interest on the two
settlements from $3,431,459.61 and multiplied this amount by
twice the proportion of Navistars fifteen percent share of the
fault (.15 x 2 = .30) for a total of $1,027,530.31. Id. Because
this modified pro rata approach yielded an amount less than the
$1,357,544.94 called for by the pure pro tanto approach, the
court entered judgment for the smaller amount. Id. Had the
superior court subtracted the entire $2.1 million in making the
first calculation, the result would have been lower than
$1,027,530.31 and the superior court presumably would have
entered judgment for that lower amount.
41 Id. It tested the pro rata reduction result against
the pro tanto reduction result and based the judgment on the
lower of the two. Id. It thus applied both AS 09.17.080(c) and
AS 09.17.080(d) (as it then read) by reading each as setting the
remaining defendants maximum liability.
42 Id.
43 Id. at 958.
44 Id. Because the superior court also failed to make a
second, unrelated reduction, the result of our holding was that
the defendant owed nothing to the plaintiff. Id.
45 Norcon, Inc. v. Kotowski, 971 P.2d 158 (Alaska 1999).
46 Id. at 163, 171.
47 Id. at 171.
48 Id. at 163.
49 Id. at 171.
50 Id.
51 Universal Motors, Inc. v. Neary, 984 P.2d 515, 516
(Alaska 1999).
52 Id. at 516.
53 Id. at 518.
54 Id.
55 Id. at n.13.
56 Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin,
828 P.2d 745, 75859 (Alaska 1992).
57 Id. at 758 (quoting Cullen v. Atchinson, Topeka & Santa
Fe Ry. Co., 507 P.2d 353, 362 (Kan. 1973) (alteration in Bohna).
58 Id. at 75859.
59 Chenega Corp. v. Exxon Corp., 991 P.2d 769, 790 (Alaska
1999) ([P]ayments made to the victim from non-collateral sources
such as the tortfeasors insurance company or a joint tortfeasor
reduce the tortfeasors liability.).
60 Slip Op. at 10. The regime was enacted in 1988 when
voters approved the 1987 initiative proposal; the regime became
effective in 1989. See 1987 Initiative Proposal No. 2.
61 Navistar, 887 P.2d at 956.
62 We overrule our decisions only when clearly convinced
that the rule was originally erroneous or is no longer sound
because of changed conditions, and that more good than harm would
result from a departure from precedent. State v. Fremgen, 914
P.2d 1244, 1245 (Alaska 1996) (quoting State v. Dunlop, 721 P.2d
604, 610 (Alaska 1986) (internal quotation marks omitted); see
also Thomas v. Anchorage Equal Rights Commn, 102 P.3d 937, 943
(Alaska 2004) (The stare decisis doctrine rests on a solid
bedrock of practicality: no judicial system could do societys
work if it eyed each issue afresh in every case that raised it.)
(quoting Pratt & Whitney Canada, Inc. v. United Techs., 852 P.2d
1173, 1175 (Alaska 1993) (internal quotation marks omitted). In
recognizing the importance of this doctrine, we have consistently
held that a party raising a claim controlled by an existing
decision bears a heavy threshold burden of showing compelling
reasons for reconsidering the prior ruling. Id. at 943.
63 Slip Op. at 8.
64 Slip Op. at 8 (citing Election Pamphlet for 1987
Initiative Proposal No. 2 (87TOR2) (statement in support)).
65 Slip Op. at 12.
66 The history of the initiative, including the
explanation on the ballot, is not so clear on the reduction topic
as to nullify the words of AS 09.17.080(c).
67 See McDougald v. Garber, 536 N.E.2d 372, 37475 (N.Y.
1989) (noting that recovery of noneconomic damages rests on the
legal fiction that money damages can compensate for a victims
injury. We accept this fiction, knowing that although money will
neither ease the pain nor restore the victims abilities, this
device is as close as the law can come in its effort to right the
wrong. (internal quotation marks omitted)).
68 See Livingstone v. Rawyards Coal Co. (1880) 5 App. Cas.
25, 39 (U.K.) (famously defining the measure of damages as that
sum of money which will put the party who has been injured, or
who has suffered, in the same position as he would have been in
if he had not sustained the wrong for which he is now getting his
compensation or reparation), quoted in Harvey McGregor, McGregor
on Damages 10 (14th ed. 1980).
69 See W. Page Keeton, et al., Prosser and Keeton on Torts
1, at 6 (5th ed. 1984) (The purpose of the law of torts is to
adjust [losses or injuries sustained as a result of the
activities of others], and to afford compensation for injuries
sustained by one person as the result of the conduct of another.
(quoting Cecil A. Wright, Introduction to the Law of Torts, 8
Cambridge L.J. 238 (1944))).
70 See Noffsinger v. State, 850 P.2d 647 (Alaska App.
1993) (suggesting that legislature may have switched to several
liability system because of inequity that results from joint and
several liability, where among several independently negligent
parties whose conduct combines to cause an injury, the party who
is capable of paying although only partially responsible will
end up paying the full award); Laubach v. Morgan, 588 P.2d 1071,
1075 (Okla. 1978) (noting that legislative enactment of
comparative negligence statute required judicial abolishment of
joint and several liability because [h]olding a defendant
tortfeasor, who is only 20 percent at fault, liable for entire
amount of damages is obviously inconsistent with the equitable
principles of comparative negligence), quoted in 3 Stein on
Personal Injury Damages Treatise 14:24 (3d ed. 1997).
71 As the United States Court of Appeals for the District
of Columbia has explained:
[A] cardinal principle of law is that in the
absence of punitive damages a plaintiff can
recover no more than the loss actually
suffered. For when the plaintiff has
accepted satisfaction in full for the injury
done him, from whatever source it may come .
. . he is so far affected in equity and good
conscience, that the law will not permit him
to recover again for the same damages. The
office of compensatory damages is to make the
plaintiff whole, but certainly not more than
whole.
Kassman v. American Univ., 546 F.2d 1029, 1033 (D.C. Cir. 1976)
(internal footnotes and quotation marks omitted).
72 See Keeton supra note 69, 1, at 7 (The civil action
for a tort . . . is commenced and maintained by the injured
person, and its primary purpose is to compensate for the damage
suffered, at the expense of the wrongdoer.).
73 See id. 1, at 9 (The idea of punishment, or of
discouraging other offenses, usually does not enter into tort law
. . . .).
74 Luth v. Rogers & Babler Constr. Co., 507 P.2d 761, 766
(Alaska 1973).
75 See ch. 139, 1, SLA 1987 (codified as amended at AS
09.17.070).
76 In Chenega Corp. v. Exxon Corp., 991 P.2d 769, 791
(Alaska 1999), we explained that AS 09.17.070 limits the
circumstances in which a victim can receive double recovery,
while enhancing the chances that a tortfeasor may not be held
fully accountable.
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